End User Licensing Agreement
ALL USE OF THIS SOFTWARE IS SUBJECT TO THE TERMS OF THIS LICENSE.
YOU MUST NOT ACCESS, USE, OR INTERACT IN ANY WAY WITH THIS SOFTWARE UNLESS YOU AGREE TO AND ACCEPT ALL TERMS AND CONDITIONS OF THIS END-USER LICENSE AGREEMENT
IF YOU DO NOT AGREE TO OR CHOOSE NOT TO ACCEPT THE TERMS AND CONDITIONS OF THIS LICENSE, YOU MAY NOT ACCESS THE SOFTWARE.
If you collect Personal Data from residents of the EU or if you are a Controller for purposes of the General GDPR, you must read and accept the Data Processing Addendum (“DPA”) to this License (find DPA link in the footer of this page), and you understand and agree the DPA modifies and forms a part of this Agreement. You further understand that KARTRA may begin tracking or collecting information from visitors who come from third-party email or advertisements immediately.
1. Definitions
In this Agreement, the following words and expressions have the following meanings:
“DPA” means the Data Processing Addendum, which forms a part of this End-User License Agreement with regard to GDPR compliance for any Controller thereunder;
“EULA” or “Agreement” mean this End-User License Agreement;
“KARTRA” means Genesis Digital, LLC and its assignees;
“License” means the limited personal license rights granted in paragraph 3;
“Site” means any site where You access the software, including but not limited to https://kartra.com ;
“Software” (or “Kartra Software”) means any KARTRA software including any web- or cloud-based application, mobile app, server-based application, client, desktop or standalone software application, plugin, or add-on, including but not limited to Kartra shopping cart software. “Software” also includes all documentation, manuals, tutorials, user guides, videos, and accompanying or associated materials whether printed or electronic; and “You” means a user (or licensee) of any Kartra Software.
2. KARTRA Retains All Ownership of the Software and its Code
KARTRA retains all ownership including all right, title, and interest in and to the Software, the underlying code, and any copies thereof. You understand and agree that KARTRA (and not You) has and keeps all proprietary rights including without limitation all intellectual property rights therein, including copyrights, patents, and trademarks which all remain exclusively KARTRA’s property.
More particularly, You agree and acknowledge that the Software is KARTRA’s exclusive property and that the Software is protected by copyright, trademark protection, database rights, and other intellectual property rights, and may be the subject of patent protection. KARTRA grants You no express or implied rights under KARTRA’s copyrights, trademarks, patents, or other intellectual property or proprietary rights. You further understand and agree that You may not, and will not, in whole or in part, adapt, alter, assign, clone, copy, create a derivative of, decode, decompile, disassemble, distribute, lease, license, modify, publish, reproduce, reverse engineer, sell, transfer, translate, or vary the Software without the prior written authorization of KARTRA, directly or indirectly through any person in Your employ or under Your authorization, direction, or control.
You further understand and agree that to the extent that the Kartra Software utilizes, incorporates, or references any third party software, those portions may remain the intellectual property of such third parties. To the extent that Kartra Software utilizes or references any modules, libraries, or the like, that include code that is subject to restrictions on proprietary rights or which require public licensing terms, those restrictions or terms only pertain to such modules or libraries and do not alter the terms of this EULA, or Your rights hereunder, or any proprietary rights as between You and KARTRA.
The only rights You have regarding the Software are those usage rights expressly provided in the License below. You also understand that You may not, directly or indirectly remove any KARTRA proprietary notices from the Software including copyright notices, trademark notices, or notices or markings regarding patents or patent status. Likewise, any third party notices or marking must remain intact.
3. Limited License Granted to You to Use the Software
KARTRA hereby grants to You a non-exclusive, non-transferable, revocable, limited, and personal license to use the Software (the “License”) in accordance with the terms of your purchase, subscription, or service plan, this EULA and KARTRA’s Acceptable Use Policy, as amended from time to time, and You agree to comply with any restrictions therein.
The Software utilizes, interfaces with, or operates in connection with services provided by or through Amazon AWS, RackSpace, Pusher, SendGrid and any of our integration partners. This license is therefore also subject to all applicable limitations, terms, and conditions of service for these services to the extent they control content or usage. You agree to comply with all such limitations, terms, and conditions in connection with your usage of the Software.
You understand that KARTRA reserves the right, in its sole discretion, to discontinue any features or aspect(s) of the Software at any time.
Your License is Personal to You; You May Not Transfer Your Rights or Duties
The limited license rights granted in this Agreement are personal to You, as are the obligations, duties, representations, and warranties made by You herein.
You may not license, sublicense, assign, or otherwise transfer or dispose of, all or any part of the Software or any of the limited rights granted to You in this Agreement to any third party. You may not remove, move, or relocate the Software from the Site or any server on which it is located unless You are expressly authorized to do so in writing by KARTRA.
Your License is Limited.
Your License to use the Kartra Software is limited. Your License is subject to our Acceptable Use Policy, which is incorporated herein. You may also be subject to specific limitations based on the License You purchased or Your subscription to the Kartra Software. KARTRA will use reasonable efforts to inform You of such limitations prior to and at the time of purchase or subscription. Limitations may also be imposed by third parties over whom KARTRA has no control (see the above list of service providers). For example, a third party may refuse to process certain types of transactions, or transactions from certain locations, or transactions for certain goods or services. KARTRA will use reasonable efforts to communicate any such li mitations to You. Other limitations may pertain to Your usage of particular features or certain aspects of the Kartra Software. For example, You will have a limit on the number of emails You can send, and the amount of video You can deliver via the Kartra Software, and You will be responsible for fees for usage of those features in excess of Your limits. KARTRA will publish the fees for any such usage and reserves the right to revise them it shall deem useful, in its sole discretion. YOU ARE ALSO RESPONSIBLE FOR TIMELY PAYMENT OF YOUR USAGE OR OTHER FEES, AND YOUR LICENSE MAY BE TERMINATED FOR NONPAYMENT OF ANY SUCH FEES.
4. Usage Limitations and Fees
Based on factors including usage, demands, and third party charges, KARTRA has established monthly usage allotments and additional usage fees for certain features of the Software. At present, email, asset hosting and bandwidth, and hostname use are the only features for which monthly allotments have been established and additional usage fees apply. Note that any Genesis Digital refund policies that may exist DO NOT APPLY to usage fees.. The consequences of nonpayment of fees may be severe, Please see Paragraph 11 regarding Termination for NonPayment.
[Note: The fees and limitations of this Paragraph 4 will be updated from time to time. Your continued use of the Software is Your assent to the current rates for which You are responsible. New rates will only be implemented as of their effective date, and will have no impact on usage prior to the effective date. KARTRA will strive to keep the fees fair for all who require additional usage.]
Email: As a User of the Kartra Software You can send a specific number of emails per month depending on the package purchased without additional fees. For each additional 1 thousand emails, You will incur a charge of US $0.99.
Asset Hosting and Bandwidth: Each User is allotted a specific number of Gigabytes of asset hosting and bandwidth per month depending on the package purchased. Additional asset hosting and bandwidth used shall be made available at the rate of US $0.19 per gigabyte.
Hostnames: Each User is allotted a specific number of custom hostnames depending on the package purchased. Depending on availability, additional hostnames used in excess of the package allowance may be available at no cost during the initial period after Kartra Software’s “Grand Opening.” After this grace period, additional hostnames shall be made available at a nominal rate per hostname (no more than $20/).
5. Disclaimer: Kartra Software is provided “AS IS” With NO Guarantees or Warranties
While the Kartra Software is reasonably believed to be functional and to accurately perform its function(s), KARTRA cannot guarantee that the Software will not contain errors or omissions, now or in the future. The KARTA Software has been rigorously tested internally, and during various alpha, beta, and other testing with third parties such that KARTRA reasonably expects that such testing has or will identify any significant errors for correction. However, certain errors may not be readily detected and may remain hidden. The Software is provided to each Licensee on an “AS IS” with any and all faults or failings. You agree that Your access and use of the Software is entirely at Your own risk. KARTRA makes absolutely no express guarantees or warranties about the Software or Your use of the Software for any purpose. All conditions, warranties, terms, representations, and undertakings, express or implied, in respect of the Software are expressly excluded. Moreover, to the extent permissible under applicable law, KARTRA specifically disclaims any and all warranties or guarantees, including any that may be implied by law or otherwise, including without limitation any warranty of performance, accuracy, completeness, quality, merchantability, fitness for a particular purpose, and any warranty of non-infringement of any intellectual property or other rights of any third party. Further, KARTRA does not warrant or assume any responsibility for financial transactions processed via the Software. You should track and verify all transactions until You have confidence that Your transactions are being properly processed and all monies due you are being paid to Your account(s). You assume the risk of failing to check Your own accounts sufficiently. As with any important business data, You should also regularly BACK-UP or otherwise PRESERVE Your User Content and other data including data pertaining to financial transactions (“Data) in connection with the Software. You are solely responsible for Your Data. KARTRA does not warrant or represent that it will preserve or retain any Data for You after the expiration, lapse, or termination of Your License to use the Software for any reason by any party, including failure to pay fees due. However, KARTRA reserves the right to do in its sole discretion. KARTRA also does not warrant or guarantee that Your use of the Software is legal/permissible under the applicable law in Your locality. You agree with the foregoing and assume all risks associated with accessing or using the Software for any financial transactions.
You understand that KARTRA does not guarantee any confidentiality with respect to any goods, services, products, promotions, or offerings used in connection with the Software.
6. KARTRA’s Liability is Limited
You accept all responsibility and liability for any damages You suffer in connection with accessing or using the Software, or installing any software, plugin, add-on or the like, in connection with the Kartra Software. You understand that KARTRA’s liability is strictly limited by this Agreement. Do not access or use the Kartra Software if You are unable or unwilling to accept this limitation. In no event shall KARTRA or its directors, officers, agents, employees or licensors be liable for any losses or damages whatsoever or howsoever incurred as a result of any access or use of, or inability to access or use the Software, including, without limitation, lost profits, lost opportunities, business interruption, or lost information, and lost Data, except to the extent which it is unlawful to exclude such liability. Your use of the Software is entirely at Your own risk. In the event that any exclusion contained in this Agreement shall be held to be invalid for any reason and KARTRA becomes liable for any loss or damage, You agree that KARTRA’s liability shall be limited to the lesser of US $50.00 or what You paid to license the Software, as agreed-upon liquidated damages.
IN NO EVENT SHALL KARTRA, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM:
(i) ANY ERRORS, OMISSIONS, MISTAKES, OR INACCURACIES WITH RESPECT TO THE SOFTWARE, OR ANY FINANCIAL TRANSACTION INCLUDING BUT NOT LIMITED TO PRICING ERRORS, TRANSACTION PROCESSING ERRORS BY THIRD PARTIES, CREDIT CARD OR SIMILAR FRAUDULENT TRANSACTIONS PROCESSED BY YOU OR ON YOUR BEHALF, OR ERRONEOUS OR FRAUDULENT CHARGEBACKS;
(ii) ANY PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND/OR USE OF OUR SOFTWARE;
(iii) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS, COMPUTERS, OR BUSINESS RECORDS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN;
(iv) ANY LOSS OR DELETION OF YOUR DATA (INCLUDING USER CONTENT) FROM KARTRA SERVERS OR SYSTEM AFTER YOUR LICENSE TO USE THE KARTRA SOFTWARE HAS EXPIRED, LAPSED, OR BEEN TERMINATED FOR ANY REASON BY YOU OR KARTRA;
(v) ANY INTERRUPTION OR CESSATION OF SOFTWARE OPERATION;
(vi) ANY BUGS, VIRUSES, MALWARE, SPYWARE, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SOFTWARE BY ANY THIRD PARTY;
(vii) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A DIRECT OR INDIRECT RESULT OF YOUR ACCESS OR USE OF THE KARTRA SOFTWARE;
(viii) ANY LOSS RESULTING FROM TERMINATION INCLUDING BUT NOT LIMITED TO TERMINATION FOR NONPAYMENT; AND/OR
(ix) ANY LIABILITY INCURRED BY YOU FOR VIOLATIONS OF THE GDPR OR SIMILAR PRIVACY REGULATIONS WHETHER OR NOT BASED IN WHOLE OR PART ON KARTRAS PROCESSING OF ANY DATA PROVIDED BY YOU TO KARTRA OR PROCESSED IN CONNECTION WITH PROVIDING THE SERVICES HEREUNDER TO YOU OR ON YOUR BEHALF;
WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT KARTRA WAS ADVISED OF OR KNEW OF THE POSSIBILITY OF SUCH DAMAGES.
THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
7. KARTRA Makes No Endorsement of User Content
KARTRA does not endorse any goods, services, products, promotions, or offerings (“User Content”) provided via, distributed, submitted, or promoted with or used with the Software. KARTRA may not agree with or condone particular claims, opinions, or viewpoints promulgated or expounded using the Software. KARTRA expressly disclaims any and all liability in connection with goods, services, products, promotions, or offerings.
8. ACCEPTABLE USE (Permissible Uses and Restrictions on Your Use of the Software).
KARTRA maintains a high-degree of professionalism and accordingly Your license from KARTRA to use the Software is subject to the following restrictions and limitations:
i) the Software may not be used in connection with any User Content that involves, to any degree, any of the following: false or misleading business opportunities, scams, or pyramid schemes; health claims that have been determined to be false or misleading by a regulatory agency; illegal activities; sales of drugs or pharmaceuticals; sales of illegal products or services; pornography or sexually explicit content; content that promotes or depicts human trafficking, child abuse, animal abuse, or which encourages or promotes abuse of alcohol, drugs or other substances, graphic or gratuitous violence, or people being injured, beaten, hurt, attacked, or humiliated; and/or content that is needlessly shocking to the senses, gratuitously gross, or which depicts or promotes accidents, death, hate speech attacking or demeaning a group based on race, ethnic origin, religion, disability, gender, age, and the like. Any use of the Software in connection with predatory behavior, including invasions of privacy, directed to other persons, particularly children under 18, is not permissible and, will not be tolerated;
ii) KARTRA reserves the right to reject or remove any User Content without prior notice for violating, in KARTRA’s sole judgment, this section, the Acceptable Use Policy, or otherwise violating this Agreement in fact or in spirit. KARTRA also reserves the right to delete any or all of Your Data (including Your User Content) without notice of any kind, upon expiration, lapse or termination of your license for any reason;
iii) You agree not to use, initiate, or implement any automated system, including without limitation, “robots,” “spiders,” or “offline readers,” on, through, or with the Software in a manner that utilizes more resources from (a) the Software, (b) any KARTRA server or site, or (c) any third party server or site, in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser;
iv) Your use of the Software will comply with all applicable laws and regulations, including but not limited to local, national, and international laws and regulations regarding: (1) the sending or distribution of unsolicited commercial email; (2) online transactions regarding work-from home or other ‘business opportunities’; (3) false or misleading advertising; (4) the intellectual property and privacy rights of others; and (5) the use of malicious code, spyware, malware, Trojan horses and the like;
v) You agree to comply with KARTRA’s security procedures including password policies (including changing Your password from time to time if directed by KARTRA), to not circumvent any security or access provisions or procedures established by KARTRA, to not implement or utilize any alternative access or backdoors to the Software, and to advise KARTRA as soon as reasonably practical of any security issues You discover or of which You become aware;
vi) You agree that if you collect any Personal Data from any person in the EU, or if you are a Controller under the GDPR that you will only use the KARTRA Software in a manner consistent with the requirements of the GDPR and any nation’s implementation thereof, and that you will only provide lawful access to KARTRA for processing any data on your behalf or behalf of your customers or leads; and
vii) You agree to only use the KARTRA Software and only to use KARTRA as a Processor of data under the GDPR with respect to data for which you have obtained any and all required consent(s) from the owner of such data.
9. Intellectual Property Rights
i) You are solely responsible for Your own User Content and the consequences of creating, copying, submitting, storing, distributing, publishing, selling, or offering for sale any User Content using the Software. You agree, affirm, represent, and warrant that You own or have any and all licenses, rights, consents, or permissions necessary for any User Content that is in whole or part, copied, used, distributed, or submitted by You using the Software;
ii) KARTRA will never use its license to Your User Content for any purpose but to enable the Software to perform its function. Except as required to perform its intended functions, KARTRA will always ask for Your permission in the event that KARTRA desires to use Your User Content beyond a nominal/inadvertent manner for promotional purposes.
You retain all of Your ownership rights to Your User Content.
However, solely for the purpose of enabling the Software to perform its function, including, the distribution, reception, or sharing of such User Content with recipients of Your User Content, as well as to cover nominal and/or inadvertent uses of Your User Content by KARTRA (or our successors and/or affiliates) in the process of promoting the Software in any media formats and through any media channels, By using such content in connection with the Software or in creating User Content, You hereby grant KARTRA a worldwide, non-exclusive, royalty-free, non-revocable, perpetual, sub-licensable, and fully transferable license to use, reproduce, distribute, practice, make derivative works of, display, broadcast, and/or perform Your User Content. You also understand that notwithstanding KARTRA’s unfettered right to delete any or all of Your Data upon expiration, lapse, or termination of Your License to use the Software, KARTRA reserves the right to preserve any or all of Your Data in any form, including on one or more system back-ups. You grant KARTRA a license to retain copies of Your Data (including User Content) at its sole discretion and agree that you will bring no claim in connection with or related to KARTRA’s retention of such Data including after Your License has ended. You further agree that KARTRA has no duty to retain such Data, search for such Data, or provide You with access to such Data after Your License has ended for any reason; and
iii) You further agree, affirm, represent, and warrant that content You copied, used, distributed, or which was submitted by You using the Software does not and will not contain third party copyrighted material, or material that is subject to other third party proprietary rights, unless You have permission from the rightful owner of the material or You are otherwise legally entitled to copy, use, distribute, or submit such content using the Software and to grant KARTRA all of the license rights granted herein.
10. You Agree to Indemnify KARTRA from Harm
You agree to defend, indemnify and hold harmless KARTRA, its officers, directors, employees, and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to costs and attorney’s fees) arising from: (i) Your use of the Kartra Software; (ii) Your violation of any term of this Agreement; (iii) Your violation of any third party right, including without limitation any copyright or other property right, or privacy right, including under the GDPR; (iv) Any claim that any User Content You offered, created, copied, distributed, or promoted directly or indirectly using the Software caused damage to a third party; or v) Any claim that KARTRA violated provisions of the GDPR based on processing data a) in accordance with instructions that You provided to KARTRA; or b) expressly or impliedly on your behalf to provide agreed upon services to You. This defense and indemnification obligation will survive Termination of this Agreement and continue even if You stop using the Software.
11. Termination
Without prejudice to any other rights KARTRA may have, KARTRA may cancel this Agreement without notice or refund if You do not abide by the terms and conditions of this Agreement. KARTRA may terminate this Agreement immediately at any time by notice to You if KARTRA, in its sole discretion, is of the view that Your continued use of the Software may infringe or cause damage to any third party rights. Upon termination, You shall promptly delete Your access and use of the Software. All other obligations You have agreed to under this Agreement shall survive Termination of this Agreement for any reason. If Your account is terminated You are prohibited from creating any new accounts and You agree not to attempt to circumvent this provision by attempting to obtain a new account under a different name, using a different IP address, or through any third party.
IMPORTANT: Termination for any reason, including billing end clients who have terminated with you or where no service is being provided, and Termination for NonPayment described below will end ALL use of the KARTRA system. Termination will not only end your ability to make future sales through the KARTRA system, but will also impact any ongoing subscriptions or recurring payments in connection with past sales. You understand that any and all credit card or other financial transactions that are processed through KARTRA or a connected gateway will no longer be processed. Moreover, any transactions that are handled by a third-party (such as PayPal) through use of our API will be ignored and thus also no longer processed.
Termination for NonPayment: KARTRA may terminate this Agreement WITHOUT notice for nonpayment or if Your account is in arrears, delinquent, or past due. KARTRA reserves the right to provide a short grace period at its discretion for long-standing customers, or customers with long-standing good credit. You understand and agree that the consequences of nonpayment may be severe for your business and assume all liability and risk of loss if YOUR access to the KARTRA system is terminated for nonpayment. You agree that any Termination for Nonpayment is KARTRA’s right, and is solely caused by your actions. You further agree that this serves as your notice of such Termination for NonPayment, and that you assume all liability for any Termination for NonPayment and expressly agree to hold KARTRA harmless for all damages you may suffer as a result of such Termination for NonPayment.
12. Applicable Laws
This Agreement shall be governed by the laws of California, U.S. and the parties hereby agree to the exclusive jurisdiction of the courts located in San Diego County, California, for any adjudications other than arbitration as provided herein.
You agree that all disputes between You and KARTRA regarding this EULA shall be resolved solely by confidential binding arbitration conducted in accordance with the American Arbitration Association (or comparable independent arbitration organization) commercial arbitration rules. All arbitration shall be held in San Diego, California, USA, unless otherwise agreed in a signed writing. Each party shall bear one half of the arbitration fees and costs incurred, and each party is responsible for its own lawyer fees, unless the arbitrator(s) agree that the case was without reasonable basis in law or fact, in which case costs and attorney’s fees may be awarded to the prevailing party. All Your claims must be arbitrated on an individual complainant basis, and cannot be consolidated in any arbitration with any claim or complaint of any other party or parties, except as agreed upon in a writing signed by KARTRA.
Notwithstanding the foregoing paragraph, disputes over the indemnification clause of paragraph 10, and any violations of paragraph 9 hereof may be adjudicated in court in San Diego County, California.
13. Entire Agreement
This Agreement constitutes the entire agreement between You and KARTRA with respect to this subject matter and supersedes all prior and contemporaneous representations, proposals, and agreements in relation thereto. No waiver or amendment of any provision of this Agreement shall be effective unless made in writing and signed by both parties. No failure or delay in exercising any right, power, or remedy under this Agreement shall operate as a waiver of any such right, power, or remedy. If any part of this EULA is determined by a court of competent jurisdiction to be invalid or unenforceable, that part shall be limited or eliminated to the minimum extent necessary so that the remainder of this Agreement shall be fully enforceable and legally binding so as to maximally preserve and effectuate the intent and agreement of the parties.
This document was last updated on May 10th, 2018