Terms of Use for Customers

Last revised: June 27, 2022

PLEASE READ THE FOLLOWING TERMS OF USE FOR CUSTOMERS CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING THE LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS OF CUSTOMER (AS DEFINED BELOW).  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”) apply to the website www.gocatalant.com and all related mobile site(s) and app(s) that may be provided by Catalant Technologies, Inc. (“Catalant”) or that link to these Terms of Use, including Customer’s and any End User’s (as defined below) access and use of the Catalant Expert Marketplace platform (collectively, the “Services”).

These Terms of Use are a binding contract between Customer and Catalant.  This means by signing up for, accessing or using the Services, you have read and agree to be bound by these Terms of Use as well as Catalant’s Services Privacy NoticeCatalant 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”).

If you are using the Services on behalf of an employer, any other entity you represent, or an Affiliate of such entity, you represent and warrant that 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.  References to “Customer” in these Terms of Use refer to that entity, its Affiliates and you (in the case of an individual using the Services).  Customer and Catalant are sometimes referred to in these Terms of Use individually as a “Party” and together as the “Parties.”  “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 percent (50%) of the voting equity of another entity.  By agreeing to these Terms of Use, Customer (a) represents and warrants to Catalant that each End User is at least eighteen (18) years old, (b) is responsible for any breach of these Terms of Use by any of its End Users, Affiliates or representatives, and (c) will use the Services for business purposes only and will comply with all applicable laws in connection with Customer’s obligations hereunder.  If you do not have such authority to bind, or if Customer does not agree to these Terms of Use in their entirety, Customer and its End Users must not use, access, or authorize any use of the Services. 

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 Customer with prior notice through the Services or by sending Customer an email to the email address(es) registered with Catalant.  Customer’s continued use of the Services after the effective date of any such revision constitutes Customer’s acceptance of the revised Terms of Use.

These Terms of Use constitute the entire agreement between Customer 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.  Catalant owns and operates the Catalant Expert Marketplace platform, a cloud-hosted marketplace platform located at app.gocatalant.com that connects Customer with independent consultants or consulting firms on such Expert Marketplace (“Experts”).  For purposes of these Terms of Use, “Expert Services” means the consulting services and related services performed by Experts for Customer, and “Project” means each engagement (including any extensions thereto) between Customer and Expert for the provision of Expert Services.  An overview of the steps to engage an Expert for a Project via the Services is as follows: (a) Customer posts the Project details for which Experts submit proposals; (b) Customer selects Expert following review of proposals; (c) Customer and selected Expert are prompted to digitally execute the Project Agreement (as defined below), which governs the Project; and (d) Customer pays the fees (including fees due to Expert) to Catalant via the Services.

1.2 Use and Restrictions.

(a) Right to Use.  Subject to compliance by Customer and its End Users (as defined below) with these Terms of Use, Catalant hereby grants Customer 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 during the term of these Terms of Use for Customer’s 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 Customer pursuant to these Terms of Use.  The limited rights granted to Customer 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 Customer to use the Services.  To access and use the Services, all End Users must register for an account (“Account”) with a username and password and create a user profile (“Profile”), which may be shown to other users on the Services.  Customer and its 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.  Customer is responsible and liable for (i) compliance with the terms of these Terms of Use by its Affiliates and its and their End Users, (ii) any and all acts or omissions of End Users with respect to the Services (including, without limitation, any financial or legal responsibility as a result of such acts or omissions, such as entering into binding contracts or approving payments on Customer behalf), (iii) any and all activities that occur under any End User Accounts, (iv) understanding and configuring the settings and controls within the Services, and (v) ensuring that its End Users abide by any Customer policies or regulations, including but not limited to, policies on spending approvals or signatory authority.  The actions of End Users with respect to the Services shall be binding on Customer.  Customer and its End Users are responsible for ensuring the security of any Account and agree not to share any End User’s username or password.  Customer must notify Catalant at security@gocatalant.com immediately if Customer suspects that a password has been lost or stolen, if Customer suspects or becomes 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 allows an individual that is not an existing End User to access the Services under his, her or their Account, Customer acknowledges and agrees that such individual constitutes an “End User” for purposes of these Terms of Use.

(c) Restrictions. Customer agrees that Customer and its End Users: (i) will not use the Services if it is not fully able and legally competent to agree to these Terms of Use; (ii) 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) will not use the Services for fraudulent purposes or to engage in any offensive, indecent or objectionable conduct.  Further, Customer agrees that it 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 send spam or otherwise duplicative or unsolicited messages in violation of applicable Laws; (G) utilize the Services to send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts agents or programs; (H) circumvent any functionality that controls access to or otherwise protects the Services; or (I) 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, Customer agrees that it and its End Users shall not provide the following to Catalant (including via the Services): (x) biometric or health data, including PHI (as defined below); (y) financial account number, credit card number, debit card number, credit report information (whether or not encrypted or otherwise protected with a password or other similar security code), or any information 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).

1.3 Engaging Experts.

(a) General.  Unless otherwise expressly agreed to by Catalant and Customer in writing, Customer and its End Users must engage Experts via the Services in accordance with this Section 1.3.  In addition, Customer acknowledges and agrees that all confirmations, approvals or other actions by Customer or any End User in connection with the Services must be taken through an End User’s Account via the Services (e.g., approval of Expert proposals and Expert’s payment requests). 

(b) Project Agreements between Customer and Experts.  For each Project, Customer and Expert will enter into an agreement to govern the terms and conditions under which the Expert Services are provided to Customer by Expert for such Project (each, a “Project Agreement”).  The Project Agreement will be presented via the Services for electronic signature by Customer and the Expert selected by Customer prior to the commencement of the Project.  The default Project Agreement will be the Catalant Project Agreement Template (which template may be updated from time to time by Catalant).  Alternatively, Customer may provide its own Project Agreement template and any additional agreements with an Expert that Customer and Expert deem appropriate (e.g., confidentiality agreements, assignment of rights, etc.), provided that such Project Agreement and/or additional agreements do not conflict with, alter the rights or responsibilities of Catalant under, or violate the terms of, 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.  Subject to the foregoing, Customer and Expert are responsible for the negotiation of the terms and conditions of the Project Agreement prior to execution, including, but not limited to, the approach, deliverables and fee structure.

Customer acknowledges, agrees, and understands that (i) 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, and (ii) the execution of a Project Agreement between Customer and an Expert will not, under any circumstance, create an employment, subcontracting or other service relationship between Catalant and such Expert.  In the event Customer executes a Project Agreement or any amendment to a Project Agreement outside of the Services, Customer must provide Catalant with a copy immediately so that Catalant can verify compliance with the requirements herein and receive and make payments in accordance with these Terms of Use and such Project Agreement.  Payments to Experts under Projects Agreements are further described in Section 2.  

The Catalant Project Agreement Template 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 (A) constitute legal advice, (B) create an attorney-client relationship, or (C) constitute advertising or a solicitation of any type.  Customer should consult independent counsel in drafting and negotiating any agreement.

1.4 Non-Circumvention.  For a period of twelve (12) months from the later of (a) the date on which Customer first identifies an Expert from the Services or (b) the completion date of the last Project (whether the Expert Services are provided to Customer, Affiliate or other end client or third-party (“End Client”)) by an Expert engaged by or through Customer via the Services (each such Expert, a “Restricted Expert” and such period, the “Restricted Period”), Customer will (i) use the Services as its exclusive method to engage such Expert for consulting or other services for Customer (or any End Client, as applicable) 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 Customer (or any End Client, as applicable) wishes to hire a Restricted Expert as an employee during the Restricted Period, Customer agrees to pay Catalant a fee of thirty-three percent (33%) of the Total Cash Compensation payable to such Restricted Expert as an 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.  Customer shall provide notice to Catalant immediately upon any such employment of any Restricted Expert during the Restricted Period, and Catalant shall have the right, in its sole discretion, to invoice Customer for the Employment Fee due as of such Restricted Expert’s first day of employment.  In the event such Restricted Expert’s employment is terminated, whether voluntarily or involuntarily, within thirty (30) days of the start of such Restricted Expert’s employment, no Employment Fee will be owed by Customer to Catalant.  If Customer (or any End Client, as applicable) offers 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 Customer 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 Customer (or any End Client, as applicable) 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, Customer (and any End Client, as applicable) is free to deal directly with the applicable Restricted Expert independently from these Terms of Use.

1.5 Acknowledgment.  Customer acknowledges, agrees and understands that: 

(a) Catalant operates the Services, which is a technology platform that connects customers with Experts.  Catalant is not an individual consultant or consulting firm and does not perform or provide any consulting services (including the Expert Services).  

(b) Experts are independent of Catalant and are not employees or subcontractors of Catalant.  As between the Parties, Customer (and not Catalant) is solely responsible for evaluating, selecting and supervising Experts for all Projects, including reviewing Expert’s qualifications and experience and determining which Experts are suitable for the applicable Projects.  Catalant does not, in any way, direct, control or monitor the Experts or the performance of the Expert Services by Experts.  Catalant does not verify and is not responsible for (i) the reliability, availability, capability or qualifications of any Experts, (ii) the Expert’s compliance with any Project Agreement or any laws, rules, regulations and standards regarding the Expert’s business or services, (iii) the quality, suitability or security of any services advertised or provided by such Experts, or (iv) the truth or accuracy of any Expert profiles or the materials or services provided by Experts. 

(c) Catalant is not a party to any contract Customer may enter into with Experts and will not have any liability or obligations whatsoever under any such contracts (except Catalant’s obligation to pay Expert in accordance with Section 2 of these Terms of Use).  With respect to any Expert engaged by Customer, Customer (and not Catalant) is solely responsible for performing any worker classification assessments and onboarding Expert in accordance with Customer’s internal policies and other requirements (including, without limitation, IT and security requirements).  Customer assumes 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.  For the avoidance of doubt, Catalant disclaims any and all liability relating to this Section 1.5.

2. FEES AND PAYMENT

2.1 Fees and Invoicing.  All fees, expenses and charges due to both Catalant and Expert in connection with a Project (the “Client Total”) will be paid by Client to Catalant.  The Client Total includes:   

(a) The amounts due to Expert for a Project, which comprise of: (i) the fee charged by Expert for Customer’s receipt of Expert Services agreed upon by Customer and Expert in the applicable Project Agreement (the “Expert Fee”) and (ii) expenses incurred by the Expert in connection with the Project agreed upon by Customer and Expert in the applicable Project Agreement (“Project Expenses”); and

(b) The fee due to Catalant for a Project (the “Catalant Fee”), which is calculated as a percentage of the Total Project Fees shown in the Services.  “Total Project Fees” is the sum of the Expert Fee and the Catalant Fee.

Such amounts are approved and remitted via the Services as follows.  Expert requests payment in accordance with the schedule set forth in the applicable Project Agreement, which will prompt Customer to approve such payment request.  Payment requests include the Expert Fee incurred, Project Expenses (if any) and the applicable Catalant Fee.  Following Customer’s approval of the payment request, Catalant (and not Customer) will pay the Expert the amounts due to Expert pursuant to the terms between Catalant and the Expert.  Catalant will invoice Customer upon Customer’s approval of Expert’s payment request.  Notwithstanding anything to the contrary in these Terms of Use, Customer shall pay to Catalant any and all portions of the Client Total approved by Customer on the Services and such approval shall be deemed acceptance of Expert Services related to such approval.

2.2 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 Customer 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.  If Customer requires that an invoice be submitted against a purchase order before payment can be made, (a) Customer will be responsible for issuing such purchase order to Catalant in a timely fashion and Customer’s failure to do so will not affect Customer’s obligation to pay all fees in accordance with these Terms of Use and (b) the Parties agree that unless and until Customer issues a valid purchase order to Catalant, Customer shall not require Expert to start performance of the Project.  

2.3 Taxes.  Unless otherwise stated, all Catalant fees and other charges do not include any taxes.  Customer 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 under these Terms of Use 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.  In the event Catalant believes it has a legal obligation to charge Customer any applicable tax, such tax will be included in Catalant’s invoices to Customer, and Customer shall pay any such tax invoiced.  Catalant will exempt Customer from any tax for which Customer provides a valid tax exemption certificate, provided, however, that no exemption will be extended to Customer in the event Catalant receives notice from the appropriate taxing authority that Customer is not qualified for the claimed exemption.

3. CONTENT

3.1 Content.  “Content” means any data, content, profiles, projects, comments, reviews, ratings, feedback, or other materials Customer or its End Users, or on behalf of or at the direction of Customer or its End Users, upload, post, publish, submit, send, store or display in connection with the access to and use of the Services.  Customer is solely responsible for all of its Content, and Customer and its End Users acknowledge and agree that Content posted, published or otherwise transmitted via the Services will be available to other users of the Services.  Catalant will not be liable in any way for any Content.  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 Customer is an intellectual property rights owner and believes someone is infringing Customer’s intellectual property rights via the Services, please see Catalant’s Intellectual Property Infringement Reporting Policy, which is hereby incorporated by reference. Catalant will maintain reasonable physical and technical safeguards to prevent unauthorized disclosure of or access to Customer’s Content in accordance with industry standards and as set forth in https://gocatalant.com/security/.  Customer hereby grants 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 Customer, (c) to respond to claims that any of Customer’s 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 Customer.  

3.2 Customer’s Obligations for Content.  Customer represents and warrants that: (a) Customer owns or has a valid license to all Content; (b) Customer has all necessary consents, authorizations and/or legal permissions required to permit the processing of Content under these Terms of Use; (c) the Content (including, without limitation, Profile information) is true, accurate and complete and does include any false or misleading information,  and (d) none of Customer’s 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 harmful, threatening, abusive, harassing, tortious, violent, defamatory, vulgar, obscene, pornographic, libelous, or otherwise objectionable or violates any applicable Law or the terms of these Terms of Use; (viii) contains personally identifiable information (other than that of the End Users in connection with the End User’s Profiles); or (ix) 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 Customer’s use of the Services and its Content to determine Customer’s 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.  Customer acknowledges and agrees 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 Customer agrees 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.  Customer is responsible for deciding if Customer wants to access or use third-party websites or content that link from the Services.  Customer agrees 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 Customer 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 Customer incurs 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 Customer 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 Customer and without retention by Customer of any proprietary or other right or claim.  Customer hereby assigns 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 Customer 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 Customer in the Project Agreement.  The terms governing the use of Customer’s confidential information by an Expert will be set forth in and governed by the Project Agreement.

4.4 Publicity.  Catalant may publicly refer to Customer as a customer of Catalant and may use Customer’s 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 during the term of these Terms of Use: (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 Customer the rights to use the Services granted herein.  As Customer’s 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 Customer. 

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 THESE TERMS OF USE.  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 THESE TERMS OF USE, OR (b) AMOUNTS DUE TO CATALANT FROM CUSTOMER UNDER THIS THESE TERMS OF USE, 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 CUSTOMER 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.  Customer agrees 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) Customer’s use of the Services in violation of these Terms of Use; (c) Customer’s 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 Customer; or (d) Customer’s violation of a state or federal wage-hour Law, tax Law, or workers’ compensation Law or similar Laws arising out of Customer’s engagement of an Expert pursuant to a Project Agreement.

7.2 By Catalant. 

(a) Catalant agrees to indemnify and hold harmless Customer and its 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 is likely to become, the subject of such a claim, and Catalant cannot, at its option and expense, (i) procure for Customer 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 Customer’s 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 Customer or on Customer’s 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 Customer’s 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 Customer via the Services and Customer has 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.  Customer may provide written notice to legal@gocatalant.com.  In the event Customer properly terminates these Terms of Use, Customer’s right to use the Services is automatically revoked and Customer’s 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 Customer’s 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) Customer 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, Customer will no longer have access to its Content on the Services and Content may be deleted for which Catalant will have no liability whatsoever.  Catalant may retain some or all of Customer’s 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 Customer 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”).  Customer and Catalant each waive any right to a jury trial.  Customer 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.  Customer acknowledges 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”).  Customer and its 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.  Customer represents and warrants that (a) Customer and its 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 Customer and its 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) Customer and its 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 Customer or its End Users is subject to any restriction on disclosure, transfer, download, export or re-export under the Export Control Laws.  Customer is 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 Customer nor Catalant will be liable for any delay or failure to perform its obligations under these Terms of Use, except for Customer’s 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 Customer provided when registering for an account); (b) a reasonably prominent posting on the Services; or (c) by Customer via email to legal@gocatalant.com.

10.7 Purchase Orders.  In the event that Customer issues a purchase order to Catalant in connection with the Services, any terms and conditions set forth in the purchase order which are in addition to or establish conflicting terms and conditions to those set forth in these Terms and Conditions are expressly rejected by Catalant. 

10.8 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.

10.9 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.