CARKETA MASTER SUBSCRIPTION AGREEMENT
Terms and Conditions
THIS AGREEMENT GOVERNS YOUR ORGANIZATION’S ACQUISITION AND USE OF THE SOFTWARE SERVICES PROVIDED BY CARKETA, INC. (HEREAFTER “CARKETA”), INCLUDING THE PRODUCT COMMERCIALLY KNOWN AS VELOCIFI. FOR THE PURPOSES OF THIS AGREEMENT, THE TERMS “CARKETA,” “VELOCIFI,” AND “COMPANY” ARE USED INTERCHANGEABLY TO REFER TO THE SERVICE PROVIDER AND ITS UNDERLYING TECHNOLOGY PLATFORM.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY.
You may not access the Services if you are our direct competitor, except with our prior written consent. In addition, you may not access the Services, except with our prior written consent, for purposes of monitoring their availability, performance or functionality.
Your use of the Services constitutes your agreement to these terms. It is effective between you (or the legal entity you represent) and Carketa as of the date you sign an Order or you first use the Services, whichever is earlier.
1. SCOPE AND ORDERING
1.1 Scope. This Agreement sets forth the terms under which Carketa will provide the Service (VelociFI) to Customer. Capitalized terms used in this Agreement are defined in Appendix 1.
1.2 Ordering. During the Term, Customer may order Subscriptions to the Service via an Order. Each Order is incorporated into this Agreement by reference. In the event of a conflict between an Order and this Agreement, the Order shall prevail regarding commercial terms (pricing/tiers), while this Agreement shall prevail regarding legal protections.
2. SUBSCRIPTIONS AND USAGE LIMITS
2.1 Subscriptions. Customer may add additional Subscriptions during a Subscription Term at the same price as found in the applicable Order. Additional Subscriptions will be co-terminated with existing subscriptions and fees pro-rated.
2.2 Service Evolution; No Reliance on Future Functionality. Carketa reserves the right to modify, update, or upgrade VelociFI, its features, and its user interface at its sole discretion. Customer agrees that its purchase is based solely upon features and functions available at the time the applicable Order is executed, and not in expectation of any future functionality or features.
2.3 Usage Controls. Access to VelociFI with an individual User’s credentials is limited to two (2) devices at any given time. Credential sharing between Users (including co-workers, contractors, or third parties) is strictly prohibited. Each User must have a unique login account. Any attempt to circumvent the access control measures (e.g., rotating credentials, use of shared accounts) may result in suspension of access, additional fees, or termination of service at Carketa’s discretion. If Customer exceeds the limitations of a Subscription, Customer’s Payment Method will be automatically charged beginning on the next billing cycle for the applicable price and or inventory tier unless otherwise defined in the applicable Order, or as otherwise arranged in writing among the Parties. If Customer does not have an automatic Payment Method available with Carketa, and Customer exceeds the limitations of a Subscription, upon Carketa’s request, Customer will promptly execute an Order, and pay Carketa’s invoice, or authorize Customer’s Payment Method, to allow for sufficient additional Inventory to comply with the Agreement. A Subscription may be rearranged subject to written permission by Carketa. Carketa reserves the right to back-bill the Customer for any period in which the Customer’s usage exceeded their contracted tier.
3. CONNECTED APPLICATIONS AND THIRD-PARTY DATA
3.1 Interoperability. The Service may contain features designed to interoperate with Connected Applications. Carketa provides such interoperability as a convenience and not as a core part of the Service. Carketa may terminate interoperability with any Connected Application at any time in its sole discretion without notice.
3.2 Connectivity and Data Disclaimer. Carketa makes no representation or warranty regarding the continuous availability, connectivity, or performance of any integration with a Connected Application. Carketa shall have no liability for: (a) any service interruptions or failures caused by the connectivity between Carketa and a Connected Application; or (b) any data errors, inaccuracies, or omissions in the information received from a Connected Application. Customer acknowledges that any data pulled from a Connected Application is provided “as-is.” Carketa is not responsible for any malfunctions, incorrect outputs, or business losses resulting from faulty, incomplete, or delayed data transmitted by a Connected Application.
3.3 Third-Party Relationship. Any acquisition or exchange of data between Customer and a Connected Application provider is solely between Customer and the applicable third-party provider. Carketa does not warrant or support Connected Applications.
4. CUSTOMER OBLIGATIONS AND RESTRICTIONS
4.1 Restrictions on Use. Customer shall not, and shall not permit any User or third party to: (a) resell, sublicense, rent, lease, or otherwise make the Service available to any third party; (b) modify, copy, or create derivative works based on the Service or any part thereof; (c) reverse-engineer, decompile, disassemble, or otherwise attempt to derive the source code, object code, or underlying structure of the Service; (d) access or use the Service to build, or assist a third party in building, a competitive product or service; (e) share access credentials or permit multiple individuals to use a single User account; (f) remove, alter, or obscure any proprietary rights notices; (g) use any robot, spider, scraper, crawler, script, or other automated means to access the Service or to extract, harvest, download, or index any data, content, rates, or other information from the Service, except through documented APIs expressly authorized by Carketa in writing; (h) circumvent, disable, or interfere with any access controls, rate limits, security features, or usage-monitoring mechanisms of the Service; (i) frame, mirror, or archive any portion of the Service or its content; (j) use the Service for unlawful purposes or to store unlawful material; (k) use the Service to send or store material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, or agents; or (l) disrupt the integrity or performance of the Service.
4.2 Personnel Non-Solicitation. During the Term and for twelve (12) months thereafter, Customer shall not, directly or indirectly, solicit for employment or hire any employee or contractor of Carketa who was involved in the performance of this Agreement, without Carketa’s prior written consent.
4.3 Benchmarking. Customer shall not access or use the Service for purposes of competitive analysis, benchmarking, or publishing any performance or feature comparison of the Service, without Carketa’s prior written consent.
4.4 Customer Responsibilities. Customer will: (a) remain responsible for Users’ compliance with this Agreement; (b) use commercially reasonable efforts to prevent, and promptly notify Carketa of, any unauthorized access to the Service arising from a compromise or misuse of Customer’s or its Users’ access credentials; (c) use the Service only in accordance with the Documentation, applicable laws, and government regulations; (d) comply with the terms of service of any Connected Application that Customer uses in conjunction with the Service; and (e) remain responsible for any action in violation of this Agreement by Customer’s Affiliates or Users.
5. DATA AND SECURITY
5.1 Responsibility. Customer is exclusively responsible for the accuracy and legality of Customer Data.
5.2 Excluded Data. Customer shall not provide Carketa with any Customer Data that is subject to heightened security requirements by law, regulation, or contract (examples include, but are not limited to, GLBA, HIPAA, FERPA, COPPA, PCI-DSS, and their international equivalents) (“Excluded Data”). Carketa shall have no responsibility or liability for Excluded Data. Customer acknowledges that no method of electronic storage is 100% secure.
5.3 Security Safeguards. Carketa will maintain commercially reasonable administrative, technical, and physical safeguards designed to protect the security, confidentiality, and integrity of Customer Data and Personal Information, consistent with applicable law. These safeguards include measures designed to prevent unauthorized access, use, alteration, or disclosure of Customer Data. Nothing in this Section modifies Customer’s obligations under Section 5.2 or constitutes a guarantee of security.
5.4 Maintenance Windows. Carketa reserves the right to perform scheduled and unscheduled maintenance to the Service. Carketa will use commercially reasonable efforts to perform scheduled maintenance during non-business hours. Access to the Service may be limited or unavailable during maintenance windows, and such downtime shall not constitute a breach of this Agreement.
6. INTELLECTUAL PROPERTY AND OWNERSHIP
6.1 Reservation of Rights. Carketa reserves all rights, title, and interest in the Service.
6.2 Ownership of Customer Data. With the exception of Personal Information, Carketa shall retain all right, title, and interest in all Customer Data stored in the Service. Carketa grants Customer a non-exclusive, worldwide, royalty-free right to reproduce, display, adapt, modify, transmit, distribute, and otherwise use such Customer Data during the Term.
6.3 Feedback Ownership. Customer grants Carketa a perpetual, irrevocable, royalty-free license to use any Feedback provided by Customer. Carketa shall own all intellectual property rights in any features developed based on such Feedback.
6.4 Aggregated Data. Carketa may collect and use anonymized Aggregated Data for business monitoring and product improvement.
7. PAYMENT TERMS
7.1 Fees. All fees are due in advance, are non-cancelable, and are non-refundable.
7.2 Non-Payment. Carketa may suspend Service if any undisputed invoice is thirty (30) days past due. Late payments accrue interest at 1.5% per month.
7.3 Suspension for Cause. In addition to its rights under Section 7.2, Carketa may suspend Customer’s or any User’s access to the Service, in whole or in part and with or without notice, if Carketa reasonably determines that: (a) Customer or a User has violated Section 2.3 or Section 4; (b) continued access poses a security risk to the Service, Carketa, or any third party; or (c) suspension is required by applicable law. Carketa will use commercially reasonable efforts to limit any suspension to the affected Users or activity and to restore access promptly once the underlying issue is resolved. Suspension does not relieve Customer of its payment obligations.
7.4 Taxes. All fees are exclusive of taxes, levies, or duties (“Taxes”). Customer is responsible for payment of all such Taxes, excluding taxes based solely on Carketa’s income. If Customer is required by any governmental authority to deduct any portion of the amount invoiced, Customer shall increase payment so that the total payment to Carketa equals the original invoiced amount.
7.5 Usage Audit. Carketa reserves the right to audit Customer’s use of the Service (including Inventory counts and User access) to ensure compliance with the terms of this Agreement and the applicable Order. If an audit reveals that Customer has underpaid fees, Carketa shall invoice Customer for such underpaid fees at Carketa’s then-current rates, and Customer shall pay such invoice within ten (10) days.
8. CONFIDENTIALITY
8.1 Definition. “Confidential Information” means information provided by one party (“Discloser”) to the other party (“Recipient”) that is identified as confidential or that would reasonably be understood to be confidential given the nature of the information and the circumstances of disclosure. This Agreement, pricing, and product roadmaps are always considered Confidential Information.
8.2 Exclusions. Confidential Information does not include information that is independently developed by the Recipient, lawfully received from another source free of confidentiality restrictions, or becomes part of the public domain without breach of this Agreement.
8.3 Duties. Recipient shall keep Discloser’s Confidential Information confidential and shall not use it for any purpose other than the performance of this Agreement. Disclosure required by law is permitted, provided that Recipient gives Discloser reasonable advance notice where legally permissible. This obligation survives termination of this Agreement.
9. INDEMNIFICATION
9.1 Indemnification by Customer. Customer shall defend, indemnify, and hold harmless Carketa and its officers, directors, employees, and agents from and against any third-party claims, actions, demands, losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to: (a) Customer Data, including any claim that Customer Data infringes or misappropriates the rights of a third party or violates applicable law; (b) Customer’s or any User’s use of the Service in violation of this Agreement or applicable law, including any violation of Section 4; or (c) any Excluded Data provided to Carketa in violation of Section 5.2.
9.2 Procedure. Carketa will promptly notify Customer of any claim subject to Section 9.1, provided that a failure to promptly notify will relieve Customer of its obligations only to the extent Customer is materially prejudiced by the delay. Customer may control the defense and settlement of the claim with counsel reasonably acceptable to Carketa, except that Customer may not settle any claim in a manner that imposes liability on, or requires an admission by, Carketa without Carketa’s prior written consent. Carketa may participate in the defense at its own expense.
10. WARRANTIES AND LIMITATION OF LIABILITY
10.1 Customer Warranties. Customer represents and warrants that it has the power and authority to enter into this Agreement, has the right to provide Carketa with access to Customer Data, and has obtained all consents required from Users.
10.2 Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SERVICE IS PROVIDED “AS IS”. CARKETA DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CARKETA DOES NOT WARRANT THAT THE SERVICE WILL BE ERROR-FREE OR UNINTERRUPTED.
10.3 Disclaimer of Indirect Damages. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR INDIRECT DAMAGES, INCLUDING LOST PROFITS OR LOSS OF USE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.4 Limitation of Liability. EXCEPT FOR CUSTOMER’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9, NEITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL EXCEED THE TOTAL AMOUNTS PAID OR OWED BY CUSTOMER IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM.
11. TERM AND TERMINATION
11.1 Renewal. Subscriptions automatically renew unless notice of non-renewal is provided at least thirty (30) days before the end of the term. Notice of non-renewal must be provided in writing to [CONFIRM NOTICE EMAIL ADDRESS].
11.2 Termination for Cause. For Subscription Terms longer than one month, either party may terminate this Agreement if the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days after written notice. Either party may also terminate this Agreement if the other party becomes subject to bankruptcy or insolvency proceedings.
11.3 Effect of Termination. Upon termination, all access to VelociFI ceases. Subject to Section 11.4, Carketa shall have the right to permanently delete all Customer Data thirty (30) days after termination.
11.4 Data Export. Upon Customer’s written request made within thirty (30) days after the effective date of termination or expiration, Carketa will make Customer Data available to Customer for export in a commonly used, machine-readable format, provided that Customer has paid all fees then due. After such thirty (30) day period, Carketa will have no obligation to maintain or provide any Customer Data and may delete it in accordance with Section 11.3, except to the extent retention is required by applicable law.
12. SURVIVAL
Sections 4.2, 6, 8, 9, 10, 11.3, 11.4, 12, and 13, and any other provisions that by their nature should survive, shall survive the expiration or termination of this Agreement.
13. MISCELLANEOUS
13.1 Assignment. Carketa may freely assign this Agreement. Customer may not assign this Agreement without Carketa’s prior written consent.
13.2 Governing Law. This Agreement is governed by the laws of the State of Utah. Exclusive jurisdiction shall be the courts of Salt Lake County, Utah. Each party waives the right to trial by jury.
13.3 Statute of Limitations. No claim may be brought more than one (1) year after the basis for the claim was known or should have been known.
13.4 Publicity. Customer agrees Carketa may use Customer’s name and logo on its website and marketing materials, subject to any reasonable trademark or brand guidelines provided by Customer in writing.
13.5 Compliance and Export Control. Each party will comply with all applicable export-control, privacy, and anti-corruption laws. Customer represents and warrants that it is not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country, and that Customer is not listed on any U.S. Government list of prohibited or restricted parties.
13.6 Notices. Notices must be in writing and sent to the addresses identified in the Agreement.
13.7 Relationship. No agency, partnership, or joint venture is created by this Agreement.
13.8 Force Majeure. Force majeure events (Acts of God, war, pandemic, etc.) excuse the affected party from performance while the event continues.
13.9 Entire Agreement. This Agreement and applicable Orders constitute the entire agreement. It may be executed in counterparts and via electronic signature.
13.10 Consent to Communications. By using the Services, Customer agrees Carketa may contact them via email, text (SMS), or phone for service, billing, and promotional purposes.
13.11 Opt-Out. Customer may opt out of promotional communications, but service-related communications may still be required to utilize the Service.
APPENDIX 1: DEFINITIONS
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with a party.
“Aggregated Data” means data derived from Customer Data or usage of the Service that has been aggregated with other data and anonymized such that it does not identify Customer or any individual.
“Authorized User” or “User” means an employee or authorized contractor of Customer who has unique credentials to access the Service.
“Connected Application” means any third-party software or data system (including administrator or warranty systems) that interoperates with the Service but is not provided by Carketa.
“Customer Data” means any electronic data submitted by Customer to the Service, excluding Feedback and Aggregated Data.
“Documentation” means Carketa’s official published user manuals and functional specifications for the Service.
“Feedback” means any suggestions, enhancement requests, recommendations, or other input provided by Customer or its Users relating to the Service.
“Inventory” means the average daily number of vehicles tracked within the Service for the prior calendar month.
“Order” means the purchasing document executed by the parties.
“Party” means either Customer or Carketa, and “Parties” means both of them.
“Payment Method” means a current, valid payment method accepted by Carketa and authorized by Customer for the payment of fees, such as ACH authorization or a credit or debit card on file.
“Personal Information” means information that identifies, relates to, or could reasonably be linked with an identified or identifiable natural person and that is protected as personal information, personal data, or nonpublic personal information under applicable privacy laws.
“Service” means the VelociFI software-as-a-service platform and associated professional services provided by Carketa, Inc.
“Subscription” means the right to access the Service during the Subscription Term as set forth in the applicable Order.
“Subscription Term” means the period during which Customer is authorized to use the Services.
