Terms of Use for Customers

Last revised: July 1, 2021

PLEASE READ THE FOLLOWING TERMS OF USE FOR CUSTOMERS CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS.  THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS AND A WAIVER OF JURY TRIALS AND CLASS ACTIONS AS DETAILED BELOW.

These Terms of Use for Customers (the “Terms of Use”) govern the access and use of the website and the operation and provision of Catalant’s Expert Marketplace platform, a cloud-hosted software-as-a-services platform located at app.gocatalant.com (collectively, the “Services”) by You and your End Users (as each term is defined below).

By signing up for, accessing or using the Services, you and Catalant Technologies, Inc. (“Catalant”, “we” or “us”) agree to be bound by and abide by these Terms of Use as well as our Services Privacy Notice, Catalant Community Standards, and Intellectual Property Infringement Reporting Policy, each of which is incorporated into these Terms of Use by reference, as of the date of such first access or use of the Services (the “Effective Date”).  You and Catalant are sometimes referred to herein individually as a “Party” and together as the “Parties.”  By agreeing to these Terms of Use (a) you represent and warrant to Catalant that you are at least eighteen (18) years old, (b) if you create an account on behalf of an employer or entity, you have the legal authority to bind such entity, its Affiliates and any representatives it allows to access and use the Services to these Terms of Use, (b) such entity is responsible for any breach of these Terms of Use by any of its End Users, Affiliates or representatives, and (c) you will use the Services for business purposes only and will comply with all applicable laws in connection with your obligations hereunder.  If you do not have such authority to bind, or if you do not agree to these Terms of Use in their entirety, you must not use, access, or authorize any use of the Services.  “Affiliate” means an entity that controls, is controlled by, or is under common control with a Party, and the term “control” as used herein shall mean possession, directly or indirectly, of at least fifty (50%) of the voting equity of another entity.In the event you agree to the Terms of Use on behalf of an employer, any other entity you represent, or an Affiliate  of any such entity, “You”, “you”, “Your”, and “your” will refer and apply to your employer or entity or Affiliate thereof.

Catalant may revise these Terms of Use from time to time, in which case the new Terms of Use will supersede prior versions.  If Catalant makes any material changes to these Terms of Use, as determined by Catalant in its sole discretion, Catalant will provide you with prior notice through the Services or by sending you an email to the email address you have registered with Catalant.  Your continued use of the Services after the effective date of any such revision constitutes your acceptance of the revised Terms of Use.

These Terms of Use constitute the entire agreement between you and Catalant with regard to the Services to be performed by Catalant and supersedes all prior agreements, understandings, statements, proposal and representations, whether written or oral, between the Parties.  In the event of any inconsistency or conflict between these Terms of Use and the terms of any Project Agreement (as defined below), the terms of the Project Agreement shall control.

1. THE EXPERT MARKETPLACE PLATFORM

1.1 Overview. The Services provide an online venue for you to identify, compare, select and pay independent consultants or consulting firms offering consulting services (“Experts”).  Via the Services, you may post projects and invite Experts to submit a bid.  Experts, in turn, post their professional profile(s) and bid on projects.  For purposes of these Terms of Use, “Expert Services” means consulting services performed by Experts selected by you pursuant to a Project Agreement (defined below), and “Project” means an engagement by Customer for Expert Services to be performed by an Expert selected by you via the Services.

1.2 Use and Restriction.

(a) Right to Use. Subject to compliance by you and your End Users (as defined below) with these Terms of Use, Catalant hereby grants you a non-exclusive, non-transferable, non-sublicensable, revocable, limited right to access and use (and to permit its Affiliates to access and use) the Services for your internal business purposes only in accordance with these Terms of Use and subject to the limitations and restrictions contained herein.  Catalant reserves any and all rights not expressly granted to you pursuant to these Terms of Use.  The limited rights granted to you to access and use the Services do not constitute the sale of or license to any software program or other intellectual property.  Catalant may change or modify the Services in its sole discretion, including adding or removing features or functions, from time to time.

(b) End Users.  “End User” means an individual authorized by you to use the Services.  You are responsible for compliance with these Terms of Use by your Affiliates and your End Users and for any and all (i) acts or omissions of your End Users with respect to the Services and (ii) activities that occur under any of your End User’s Accounts (as defined below).  The actions of your End Users with respect to the Services shall be binding on you.

(c) Accounts.  To access and use the Services, all End Users must register for an account (“Account”) with a username and password.  You and your End Users are responsible for ensuring the security of any Account and agree not to share any End User’s username or password.  You must notify Catalant at security@gocatalant.com immediately if you suspect that a password has been lost or stolen, if you suspect or become aware of any unauthorized use of an End User’s Account, or if the security of the Services has been otherwise compromised.  In the event that an End User grants permission to another individual to access the Services under his or her Account, you represent and warrant that (i) such individual shall be authorized to act on your behalf, (ii) you shall be financially and legally responsible for said individual’s acts and omissions, including, if applicable, entering into binding contracts on your behalf, and (iii) you shall be responsible and liable for any act or omission of any individual provided such permissions, including without limitation approving payments and entering into binding contracts on your behalf. 

(d) Profiles and Permissions.  All End Users must create a user profile (“Profile”), which may be shown to other users of the Services unless an End User modifies his or her Profile privacy settings within the Services.  You and your End Users agree to provide true, accurate and complete Profile information and all other fields and forms within the Services and to update any Profile information to maintain its truthfulness, accuracy and completeness.  You and your End Users agree not to provide any false or misleading Profile information, including without limitation, information about identity, location, or skills and to correct any such information that is or becomes false or misleading.  End Users shall not be permitted to review Expert profiles or contract with Experts outside of the Services, and all confirmations, approvals or other actions by an End User in connection with the Services must be taken through an End User’s Account.  End User shall take actions through the Services as opposed to through email, phone calls, texts or other methods of communication.  You are solely responsible for ensuring that your End Users abide by any of your policies or regulations, including but not limited to, policies on spending approvals or signatory authority. You and your End Users agree to abide by the Catalant Community Standards, and are subject to the Services Privacy Notice, which are hereby incorporated into these Terms of Use.

(e) Restrictions.  You agree, on your behalf and on behalf of your End Users, that: (i) you and your End Users will not use the Services if you or they are not fully able and legally competent to agree to these Terms of Use; (ii) you and your End Users will only use the Services in full compliance with all applicable statutes, laws, ordinances, regulations, rules, codes, orders, constitutions, treaties, common laws, judgments, decrees, other requirements or rules of law of any federal, state, local or foreign government or political subdivision or agency thereof (collectively, “Law” or “Laws”) and these Terms of Use; and (iii) you and your End Users will not use the Services for fraudulent purposes or to engage in any offensive, indecent or objectionable conduct.  Further, you agree that you will not, directly or indirectly: (A) distribute, sell, assign, encumber, transfer, rent, lease, loan, sublicense, modify, time-share or otherwise exploit the Services in any unauthorized manner; (B) copy, reproduce, adapt, create derivative works of, translate, localize, port or otherwise modify the Services or any part thereof in any form or manner or by any means; (C) harvest or scrape any content or data from the Services; (D) remove or alter any copyright or other proprietary rights notice or restrictive rights legend contained or included in the Services; (E) decompile, disassemble, reverse compile, reverse assemble, reverse translate or otherwise reverse engineer any part of the Services (except as and only to the extent any foregoing restriction is prohibited by applicable Law); (F) utilize the Services to (I) send spam or otherwise duplicative or unsolicited messages in violation of applicable Laws or (II) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts agents or programs; (G) circumvent any functionality that controls access to or otherwise protects the Services; or (H) permit an End User or its agents or any other third party to engage in any of the foregoing.  Any attempt to do any of the foregoing is a material breach of these Terms of Use and a violation of the rights of Catalant and its licensors.  Further, you agree that you and your End Users shall not provide (x) biometric or health data, including PHI (as defined below); (y) financial account number, credit card number, debit card number, credit report information, with or without any required security code, access, code, personal identification number or password, that would permit access to an individual’s financial account; and (z) an individual’s government-issued identification number (including social security number, driver’s license number or state-issued identified number) to Catalant in connection with the performance of the Services.

1.3 Engaging Experts.

(a) Project Agreements Between Customers and Experts. To engage an Expert for a Project, you will contract directly with that Expert under an agreement executed between you and an Expert (a “Project Agreement”) facilitated through the Services.  The parties to the Project Agreement can, if the parties prefer, agree to the Catalant Project Agreement Template.  Alternatively, you may provide your own Project Agreement template, provided that any such Project Agreement may not alter the rights or responsibilities of Catalant, or agree to any terms that would violate these Terms of Use.  In addition, you and an Expert may enter into any other written agreement that you and such Expert deem appropriate (e.g., confidentiality agreements, assignment of rights, etc.) provided that any such agreements do not conflict with, narrow Catalant’s rights, or expand Catalant’s obligations under these Terms of Use.  Catalant reserves the right to reject any Project Agreement through the Services to the extent Catalant determines, in its sole discretion, that a Project Agreement violates the terms contained in these Terms of Use. 

You and Expert are responsible for the negotiation of the terms and conditions of the Project Agreement, including, but not limited to, the approach, deliverables and fee structure.  You acknowledge, agree and understand that Catalant is not a party to any Project Agreement and that Catalant’s role is that of a third-party beneficiary with respect to Catalant’s payment rights and obligations in the Project Agreement.  You further acknowledge, agree and understand that the execution of a Project Agreement between you and an Expert will not, under any circumstance, create an employment, subcontracting or other service relationship between Catalant and such Expert.  

The Catalant Project Agreement Template is aligned with the online contracting tool in the Services and is provided as a convenience and may not be appropriate for all jurisdictions or all contracts.  Catalant does not assume any responsibility for any consequence of using the Catalant Project Agreement Template.  The Catalant Project Agreement Template is not intended to and does not (i) constitute legal advice, (ii) create an attorney-client relationship, or (iii) constitute advertising or a solicitation of any type.  You should consult independent counsel in drafting and negotiating any agreement.  Catalant expressly disclaims any and all liability with respect to actions or omissions based on the Catalant Project Agreement Template.

(b) Payments Under Project Agreements. After an Expert requests payment in connection with a Project Agreement through the Services, you shall be prompted via the Services to approve the Expert’s payment request.  Following your approval through the Services of such Expert payment request, Catalant (and not you) will pay Expert the amounts due to Expert for the Expert Services as set forth in Section 2 below pursuant to the terms between Catalant and the Expert.  You will pay the Total Project Cost to Catalant in accordance with the terms set forth in Section 2 below.  Notwithstanding anything to the contrary in these Terms of Use, you shall pay to Catalant any and all portions of the Total Project Cost approved by you on the Expert Marketplace and such approval shall be deemed acceptance of Expert Services related to such approval.

1.4 Non-Circumvention.  For a period of twelve (12) months from the later of the date on which (a) you first identify an Expert from the Services or (b) an Expert completes its last Project with you (each such Expert, a “Restricted Expert” and such period, the “Restricted Period”), you will (i) use the Services as your exclusive method to receive consulting or other services from such Expert and (ii) not make any complete or partial payments to any such Expert for Expert Services or any services outside of the Services, or otherwise circumvent Catalant’s invoicing and payments process.  Any violation of the foregoing restrictions is a material breach of these Terms of Use.    If you wish to hire a Restricted Expert as an employee during the Restricted Period, you agree to pay Catalant a fee of thirty-three percent (33%) of the Total Cash Compensation payable to such Restricted Expert as your employee (the “Employment Fee”).  “Total Cash Compensation” means the annualized base salary plus any signing, discretionary or other bonuses or commissions payable to such Restricted Expert, but does not include moving expenses, tuition reimbursement or any other similar compensation or type of allowance.  You shall provide notice to Catalant immediately upon hiring any Restricted Expert during the Restricted Period as an employee and Catalant shall have the right, in its sole discretion, to invoice you for the Employment Fee as of the Restricted Expert’s first day of employment with you.  In the event the Restricted Expert’s employment with you is terminated, whether voluntarily or involuntarily, within thirty (30) days of the start of Restricted Expert’s employment with you, no Employment Fee will be owed by you to Catalant.  If you offer a non-employee role to a Restricted Expert during the Restricted Period (e.g., a role as a board member or strategic advisor), Catalant shall, on a case-by-case basis, assess, and you shall then owe to Catalant, an appropriate finder’s fee in line with standard industry practice.  No Employment Fee will be owed to Catalant if a Restricted Expert is hired by you solely via a solicitation initiated through general advertisements and other general circulation materials not directly targeted at such Restricted Expert.  Upon expiration of the Restricted Period, you are free to deal directly with the applicable Restricted Expert independently from these Terns of Use.

1.5 Acknowledgment.  You acknowledge, agree and understand that (a) the Services are a venue where users may act as either customers seeking Expert Services or Experts; (b) Catalant does not perform or provide Expert Services; (c) Experts are not employees or subcontractors of Catalant; (d) Catalant does not, in any way, supervise, direct, control or monitor the Experts or the performance of the Expert Services by Experts; (e) Catalant is not a party to any contract you may enter into with Experts and will not have any liability or obligations whatsoever under any such contracts; (f) Catalant does not independently evaluate, investigate or otherwise conduct due diligence regarding the work product of Experts, and makes no promise as to (i) the reliability, capability or qualifications of any Experts, (ii) the quality, security or legality of any services advertised or provided by such Experts, (iii) the truth or accuracy of any Expert profiles or the materials or services offered by such Expert, (iv) the availability of an Expert to deliver services or (v) whether an Expert can or will actually complete a transaction or Project; (g) Catalant does not perform any worker classification evaluations for any Projects on which you may engage with an Expert and you assume all liability for determining whether an Expert should be engaged as an independent contractor or employee and complying with all applicable Laws relating to such determination; and (h) you are solely responsible for reviewing Expert qualifications and experience and selecting suitable Experts based on your determination of such Expert’s capability in performing Expert Services for applicable Projects.  For the avoidance of doubt, Catalant disclaims any and all liability relating to any of the foregoing.

2. FEES AND PAYMENT

2.1 Fees.

(a) You shall pay all fees, expenses and charges owed to Catalant and the Expert in connection with a Project (the “Total Project Cost”).  The Total Project Cost includes the sum of (i) the Expert Fee and the Catalant Fee (the sum of which shall be referred to as the “Total Professional Fee”) and (ii) any Project-Related Expenses, if applicable.  The “Expert Fee” means the fee charged by the Expert for your receipt of Expert Services that is agreed upon by you and Expert in the Project Agreement.  The “Catalant Fee” means the fee charged by Catalant for a Project.  The “Project-Related Expenses” means expenses incurred by Expert in connection with a Project.

2.2 Invoicing; Payment Terms.

(a) Except as otherwise set forth in a Project Agreement, with respect to Project based fees, in the case of a fixed fee Project with a Total Professional Fee less than or equal to $20,000, you shall be invoiced by Catalant in full on the Project’s estimated start date.  In the case of a fixed fee Project with a Total Professional Fee greater than $20,000, you shall be invoiced by Catalant in installments invoiced partially on the Project’s estimated start date and immediately after your approval via the Services of the previous installment payment to the Expert.  In the case of hourly rate Projects, you shall be invoiced by Catalant immediately after your approval via the Services of the Expert’s reported hours.  Project-Related Expenses will be invoiced immediately after your approval via the Services.

(b) Payment Terms.  Except as otherwise set forth in a Project Agreement, all payments under these Terms of Use are due net fifteen (15) days from the invoice date and shall be in United States dollars.  Any payment not received from you by the due date may accrue, at Catalant’s discretion, late charges at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by Law, whichever is lower, from the date such payment was due until the date paid.

2.3 Taxes.  You shall be responsible for all applicable sales, use, excise, value added or similar taxes, if any, payable with respect to the Services and/or Expert Services provided or arising out of or in connection with these Terms of Use whether at the time of invoicing or later determined by a taxing jurisdiction, provided that Catalant shall be responsible for all taxes imposed on Catalant’s net income or gross receipts, for any personal property taxes on property it owns or leases, and for franchise and privilege taxes on its business.  The Parties agree to cooperate with each other to enable each to more accurately determine its own tax liability and to minimize such liability to the extent legally permissible.  Catalant’s invoices will separately state the amounts of any taxes Catalant is collecting from you.  You will be entitled to any tax refunds or rebates granted to the extent such refunds or rebates are of taxes paid by you.

3. CONTENT

3.1 Content.  “Content” means any data, content, profiles, projects, comments, reviews, ratings, feedback, or other materials you or your End Users, or Catalant on behalf of you or your End Users, upload, post, publish, submit, send, store or display within the Services.  You are solely responsible for all of your Content, and you and your End Users agree not to upload or direct Catalant to upload any Content prohibited by applicable Law or in violation of the restrictions in this Section.  You acknowledge and agree that Content that is posted, published or made available by you, on your behalf or at your direction, via the Services will be available to other users of the Services.  Catalant is not legally responsible for any Content posted, published or made available through the Services by you or any other users.  Catalant reserves the right, but is not obligated, to remove posted Content or information that, in Catalant’s sole judgment, violates these Terms of Use or negatively affects the Services, diminishes the integrity of the Services or is otherwise inconsistent with the business interests of Catalant.  If you are a proprietary rights owner and believe someone is infringing your proprietary rights via the Services, please see our Intellectual Property Infringement Reporting Policy. Catalant will maintain reasonable physical and technical safeguards to prevent unauthorized disclosure of or access to your Content in accordance with industry standards and as set forth in https://gocatalant.com/security/.  You hereby grant Catalant a worldwide, non-exclusive, perpetual, royalty-free, fully-paid license to collect, access, use, reproduce, modify, transmit, display, index, process, store, and create derivative works from the Content for purposes of (a) the provision, operation, evaluation, and improvement of the Services in accordance with these Terms of Use, including the Services Privacy Notice, (b) as authorized or instructed by you; (c) to respond to claims that any of your Content violates the rights of third parties, or (d) as required by applicable Law.  Catalant shall own aggregated metrics and statistical data generated from the provision, operation or use of the Services provided that Catalant will only disclose such data externally in an aggregated and/or anonymous form that shall not directly or indirectly identify you.

3.2 Your Obligations for Content.  You represent and warrant that: (a) you own or have a valid license to all Content; (b) you have all necessary consents, authorizations and/or legal permissions required to permit the processing of Content under these Terms of Use; and (c) none of your Content: (i) constitutes “protected health information” (“PHI”) under the Health Insurance Portability and Accountability Act of 1996, Public Law 104-191, as amended from time to time (“HIPAA”); (ii) is subject to the International Traffic in Arms Regulations maintained by the Department of State; (iii) infringes any intellectual property, proprietary, contractual or privacy rights of any party; (iv) constitutes material, non-public information, the disclosure of which would be in violation of any securities Law; (v) contains software viruses or any other computer code, files or programs that interrupts, destroys or limits the functionality of any computer software or hardware or telecommunications equipment; (vi) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail”, “spam”, “chain letters”, “pyramid schemes”, “contests”, “sweepstakes”, or any other form of solicitation; (vii) is unlawful, harmful, threatening, abusive, harassing, tortious, violent, defamatory, vulgar, obscene, pornographic, libelous, or otherwise objectionable; or (viii) in the sole judgment of Catalant, is objectionable or which restricts or inhibits any other person from using or enjoying the Services, or which may expose Catalant or its users to any harm or liability of any kind.  Catalant has the right, but not the obligation, to monitor your use of the Services and your Content to determine your compliance with these Terms of Use.

4. OWNERSHIP; CONFIDENTIALITY

4.1 Ownership. The Services’ “look and feel” (e.g., text, graphics, images, logos), proprietary content and software code, information and other materials are protected under intellectual property Law.  You acknowledge and agree that Catalant and/or its licensors own all right, title and interest in and to the Services (including all intellectual property rights therein or related thereto) and you agree not to take any action(s) inconsistent with such ownership interests.  Any and all improvements, updates, modifications or enhancements, whether made, created or developed by Catalant or otherwise relating to the Services (collectively, “Revisions”), are and will remain the property of Catalant.  Upon creation, all Revisions become the sole and exclusive property of Catalant.  The Services may include links to third party websites or content.  You are responsible for deciding if you want to access or use third-party websites or content that link from the Services.  You agree that Catalant is not responsible for third-party content or information provided on third-party websites.  Third-party websites have their own legal terms and privacy policies, and you may be giving others permission to use its information in ways Catalant would not.  Catalant has no control over, is not responsible for and does not endorse any such websites or content, and Catalant will have no liability for any damages or losses you incur by visiting or using such third-party websites or content.

4.2 Feedback. Any and all suggestions for correction, change, enhancement, improvement and modification to the Services (collectively “Feedback”) are and will remain the property of Catalant.  For the avoidance of doubt, Feedback does not include comments, reviews, or ratings left by you with respect to Expert Services.  Catalant may use and disclose Feedback in any manner and for any purpose whatsoever without further notice or compensation to you and without retention by you of any proprietary or other right or claim.  You hereby assign to Catalant any and all right, title and interest that it may have in and to any and all Feedback.

4.3 Ownership of Expert Deliverables; Confidentiality.  Catalant shall not assert any ownership or other claim in or to any work product developed or created by an Expert for you in the course of Expert’s performance of Expert Services and ownership of such work product and the related intellectual property rights will be assigned by an Expert to you in the Project Agreement.  The terms governing the use of your confidential information by an Expert will be set forth in and governed by the Project Agreement.

4.4 Publicity.  Catalant may publicly refer to you as a customer of Catalant and may use your name and logos alongside the names and/or logos of other Catalant customers, including but not limited to, on Catalant’s website, in customer lists, pitch proposals, investor presentations and sales presentations.  The Parties may also participate in other marketing and referral activities as may be mutually agreed.

5. REPRESENTATIONS AND WARRANTIES; DISCLAIMER

5.1 Services. Catalant represents and warrants that: (a) the Services will be performed in a professional and workmanlike manner in accordance with industry standards; (b) Catalant will employ then-current, industry-standard measures to test the Services to detect and remediate viruses, Trojan horses, worms, logic bombs, or other harmful code or programs designed to negatively impact the operation or performance of the Services, and (c) it owns or otherwise has sufficient rights in the Services to grant to you the rights to use the Services granted herein.  As your sole and exclusive remedy, and Catalant’s sole and exclusive obligation, for any breach of the foregoing warranties regarding the Services, Catalant shall use commercially reasonable efforts to correct the non-conforming Services at no additional charge to you.

5.2 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 5, CATALANT MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH REGARD TO THE SERVICES, THE EXPERT SERVICES, OR ANY ACTIVITIES OR ITEMS RELATED TO THIS AGREEMENT.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CATALANT AND ITS SUPPLIERS DISCLAIM ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.  THE SERVICES ARE PROVIDED “AS IS” AND NEITHER CATALANT NOR ITS SUPPLIERS WARRANT THAT ALL ERRORS OR DEFECTS CAN BE CORRECTED, OR THAT PROVISION AND OPERATION OF THE SERVICES SHALL BE UNINTERRUPTED OR ERROR-FREE.

6. LIMITATION OF LIABILITY

6.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, INDIRECT OR SIMILAR LOSSES OR DAMAGES OF ANY NATURE INCLUDING, BUT NOT LIMITED TO, COSTS OR DAMAGES DUE TO LOSS OF PROFITS, BUSINESS OPPORTUNITIES, REVENUE, GOODWILL, PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR THE LOSS OR COST OF RECREATING ANY DATA, ARISING OUT OF OR IN CONNECTION WITH THESE  TERMS OF USE, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT OR OTHERWISE, EVEN IF A PARTY WAS ADVISED OF, KNEW OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES AND EVEN IF THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE.

6.2 EXCEPT (a) FOR LIABILITY ARISING FROM EITHER PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 7 OF THIS AGREEMENT, OR (b) AMOUNTS DUE TO CATALANT FROM YOU UNDER THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL AGGREGATE LIABILITY OF EACH PARTY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF USE WILL NOT EXCEED THE AMOUNTS PAID BY YOU TO CATALANT FOR ITS USE OF THE SERVICES DURING THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO LIABILITY.

7. INDEMNIFICATION

7.1 By Customer. You agree to indemnify and hold harmless Catalant and its Affiliates, officers, employees, representatives and agents from any and all claims, actions, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) (collectively, a “Claim”) arising from or relating to: (a) Content; (b) your use of the Services in violation of these Terms of Use; (c) your violation or alleged violation of any state or federal discrimination, harassment or other similar Law that is brought against Catalant arising out of any action or conduct occurring while an Expert is performing Expert Services for you; or (d) your violation of a state or federal wage-hour Law, tax Law, or workers’ compensation Law or similar Laws arising out of your engagement of an Expert pursuant to a Project Agreement.

7.2 By Catalant.

(a) Catalant agrees to indemnify and hold harmless you and your affiliates, officers, employees, representatives and agents (Customer Indemnitees) from any and all Claims arising from or relating to a third-party claim asserted against Customer Indemnitees alleging that the Services infringe any intellectual property right of that third party.   If any portion of the Services become, or in Catalant’s opinion are likely to become, the subject of such a claim, and Catalant cannot, at its option and expense, (i) procure for you the right to continue using the Services, or any part thereof, (ii) replace the Services, or any part thereof, with non-infringing services which do not materially impair the functionality of the Services, or (iii) modify the Services, or any part thereof, to make it non-infringing which does not materially impair the functionality of the Services, then Catalant may terminate your use of the Services.  Notwithstanding the foregoing, Catalant shall have no obligation under this Section or otherwise with respect to any claim arising from (A) modification of the Services by you or on your behalf by a party other than Catalant, (B) combination of the Services with any software or technology not developed by Catalant, if the use of the Services without such combination would not constitute infringement, or (C) use of the Services in violation of these Terms of Use.  This Section 7.2 constitutes your sole and exclusive remedy, and the entire liability of Catalant and its Affiliates, officers, directors, employees, representatives and agents, for claims that the Services infringe any third-party intellectual property rights.

(b) Catalant further agrees to indemnify Customer Indemnitees from any and all Claims asserted by an Expert arising from or relating to Catalant’s failure to pay such Expert for payments owed to the Expert pursuant to a Project Agreement, but only to the extent that such payments owed to the Expert have been approved by you via the Services and you have timely paid Catalant all fees, expenses and other amounts then-owed to Catalant in accordance with the Terms of Use.

7.3 Procedure. An indemnifying party’s (“Indemnitor’s”) obligation under this Section 7 is contingent upon (a) the indemnified party (“Indemnitee”) giving prompt written notice to Indemnitor of any Claim, provided that Indemnitee’s failure to so notify Indemnitor will not relieve Indemnitor from any of its obligations under these Terms of Use, except to the extent that Indemnitor has been actually and materially prejudiced by Indemnitee’s failure to so notify, (b) Indemnitee allowing Indemnitor to control the defense and related settlement negotiations, and (c) Indemnitee cooperating with Indemnitor to facilitate the settlement or defense of the Claim.  Indemnitee will have the right, at its sole expense, to participate in the defense of the Claim with counsel of its choice, and Indemnitor will not agree to any settlement that imposes any liability or restrictions on Indemnitee or requires any action by or payment from Indemnitee without Indemnitor first obtaining Indemnitee’s prior written consent.

8. TERMINATION

8.1 Termination. Unless the Parties expressly agree otherwise in writing, either Party may terminate these Terms of Use in its sole discretion, upon written notice to the other Party. You may provide written notice to legal@gocatalant.com. In the event you properly terminate these Terms of Use, your right to use the Services is automatically revoked and your account will be closed. Catalant reserves the right, in addition to any other rights or remedies to: (a) discontinue the Services and to suspend all End Users’ and your access to the Services if any fees are overdue until such amounts are paid in full and (b) suspend an End User’s Account and/or access to the Services for violation of these Terms of Use, any applicable Law or third-party rights.

8.2 Effect of Termination. Termination of these Terms of Use shall not affect (a) any liabilities or obligations of either Party arising before the date of such termination or out of the events causing such termination; or (b) any damages or other remedies to which a Party may be entitled under these Terms of Use, at law or in equity, arising from any breaches of such liabilities or obligations.  Termination of these Terms of Use does not automatically terminate or otherwise impact any Project or Project Agreement in force at the time of termination.  In the event there are any ongoing Projects at the time of termination of these Terms of Use, (i) these Terms of Use will continue to apply and be in effect until all Projects have been completed or otherwise terminated and (ii) you will continue to be obligated to pay any amounts due under these Terms of Use and any applicable Project Agreement until completion or termination of all ongoing Projects or the date of termination, whichever is later.  Except as otherwise required by applicable Law or as otherwise set forth in these Terms of Use, upon termination, you will no longer have access to Content on the Services and Content may be deleted for which Catalant will have no liability whatsoever.  Catalant may retain some or all of your Account information and Content as required by applicable Law or its internal retention policies.  For the avoidance of doubt, termination of these Terms of Use does not relieve you of its obligations with respect to the Non-Circumvention Period set forth above. 

8.3 Survival. Following termination of these Terms of Use for any reason, the terms of these Terms of Use that expressly or by their nature contemplate performance or observation after such termination will survive and continue in full force and effect.  Such terms include, but are not limited to, the provisions requiring payment of fees, non-circumvention, indemnification, and limitations of liability.  Without limiting any other provisions of these Terms of Use, the termination of these Terms of Use for any reason will not release either Party from any obligations incurred prior to such termination.

9. DISPUTE RESOLUTION

9.1 Informal Process First. Except in the case either Party is seeking equitable relief, the Parties agree that in the event of any dispute between them, each Party will first contact the other Party and make a good faith sustained effort to resolve the dispute amicably and efficiently.

9.2 Individual Basis; Jury Trial Waiver. To the fullest extent permitted by applicable Law, the Parties agree that any proceeding to resolve any claim, dispute or controversy arising out of or relating to these Terms of Use (“Dispute”) will be conducted only in the respective Party’s individual capacity, and not as a plaintiff or class member in any purported class, consolidated, multiple plaintiff or representative action (“Class Action”).  You and Catalant each waive any right to a jury trial.  You and Catalant expressly waive any ability to maintain any Class Action in any forum.  If the Dispute is subject to arbitration, the arbitrator will not have authority to combine or aggregate similar claims or conduct any Class Action nor make an award to any person or entity not a party to the arbitration.  Any claim that all or part of this Class Action waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator.

9.3 Limitation Period. In no event will any claim, or any other action or proceeding by either Party be instituted more than one (1) year after the cause of action arose.

9.4 Jurisdiction. The Parties agree to the exclusive jurisdiction of the federal and state courts located in Boston, Massachusetts, and agree to submit to the exercise of personal jurisdiction of such courts for the purposes of litigating any applicable dispute or claim.

10. GENERAL

10.1 Assignability. Neither Party may assign these Terms of Use or any of its rights or obligations hereunder without the other Party’s prior written consent.  Notwithstanding the foregoing, either Party may assign these Terms of Use together with all rights and obligations hereunder, without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets related to these Terms of Use not involving a direct competitor of the other Party.  Any attempted assignment or transfer in violation of this Section 10.1 will be null and void.  Subject to the foregoing restrictions, these Terms of Use will inure to the benefit of the successors and permitted assigns of the Parties.

10.2 Export Compliance. You acknowledge that the Services, or portion thereof, may be subject to the export control laws of the United States and other applicable country export control and trade sanctions laws (“Export Control Laws”).  You and your End Users may not access, use, export, re-export, divert, transfer or disclose any portion of the Services or any related technical information or materials, directly or indirectly, in violation of any applicable Export Control Laws.  You represent and warrant that (a) you and your End Users are not citizens of, or located within, a country or territory that is subject to U.S. or other sovereign country trade sanctions or other significant trade restrictions and that you and your End Users will not access or use the Services, or export, re-export, divert, or transfer the Services, in or to such countries or territories; (b) you and your End Users are not identified on any U.S. government restricted party lists (including without limitation the U.S. Treasury Department’s List of Specially Designated Nationals and Blocked Persons and Foreign Sanctions Evaders List, the U.S. Department of Commerce’s Denied Parties List, Entity List, and Unverified List, and the U.S. Department of State proliferation-related lists); and (c) no Content created or submitted by Customers or its End Users is subject to any restriction on disclosure, transfer, download, export or re-export under the Export Control Laws.  You are solely responsible for complying with the Export Control Laws and monitoring them for any modifications.

10.3 Relationship of the Parties. The Parties are independent contractors and will have no power or authority to assume or create any obligation or responsibility on behalf of each other.  These Terms of Use will not be construed to create or imply any partnership, agency, joint venture or employment relationship between the Parties.

10.4 Force Majeure. Neither you nor Catalant will be liable for any delay or failure to perform its obligations under these Terms of Use, except for your payment obligations, due to any cause beyond its reasonable control, including labor disputes or other industrial disturbances, systemic electrical, telecommunications or other utility failures, earthquakes, storms or other acts of nature, embargoes, riots, acts or orders of government, acts of terrorism, or war.

10.5 Governing Law. These Terms of Use and any controversy, dispute or claim arising out of or relating to these Terms of Use will be governed by and construed in accordance with the Laws of the Commonwealth of Massachusetts, without regard to its conflict of law provisions. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to these Terms of Use.

10.6 Notices; Consent to Electronic Notice. The Parties consent to the use of electronic means to deliver any notices pursuant to these Terms of Use.  Notices will be given: (a) by Catalant via email (in each case to the email address that you provided when registering for an account); (b) a reasonably prominent posting on the Services; or (c) by you via email to legal@gocatalant.com.

10.7 No Waiver. The failure or delay of either Party to exercise or enforce any right or claim does not constitute a waiver of such right or claim and will in no way affect that Party’s right to later enforce or exercise it, unless such Party issues an express written waiver, signed by a duly authorized representative of each Party.

10.8 Severability. If and to the extent any provision of these Terms of Use are held illegal, invalid, or unenforceable in whole or in part under applicable Law, such provision or such portion thereof will be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability, and will be deemed modified to the extent necessary to conform to applicable Law so as to give the maximum effect to the intent of the Parties.