Last revised: July 1, 2021
1. THE EXPERT MARKETPLACE PLATFORM
1.2 Use and Restriction.
(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 firstname.lastname@example.org 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.
1.3 Engaging Experts.
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.
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
(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.
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
7.2 By Catalant.
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.
9.3 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.
10.2 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.
10.7 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.