Master Subscription Agreement for Customers

We have updated our Master Subscription Agreement for Customers (“MSA”) to reflect a change in the Employment Fee in Section 5.2 of the Supplemental Terms. If you are an existing customer whose relationship with Catalant is governed by this online MSA, these changes will be effective July 27, 2020, and your continued use of the Catalant platform after such date constitutes your acceptance of the updated terms.

Last revised: July 20, 2020

For a prior version of the Master Subscription Agreement, please click here.

PLEASE READ THIS AGREEMENT CAREFULLY AS IT CONTAINS 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 IN SECTION 10.2.

This Master Subscription Agreement (the “Master Subscription Agreement”) together with the General Terms and Conditions and any Supplemental Terms, Exhibits, Order Forms or Statements of Work (each, where applicable) (collectively, the “Agreement”) governs the access and use of the website located at app.gocatalant.com and related software and services (collectively, the “Services”) by you and your End Users (as defined below).

By signing up for, accessing or using the Services, you are agreeing, on behalf of the legal entity you represent, to enter into a legally binding contract between the legal entity you represent, on the one hand (“Customer”), and Catalant Technologies, Inc., on the other hand (“Catalant”) as of the date of such first access or use of the Services (the “Effective Date”). Customer and Catalant are sometimes referred to herein individually as a “Party” and together as the “Parties.” By agreeing to this Agreement on behalf of a legal entity, (a) you represent and warrant to Catalant that you are at least eighteen (18) years old and have the authority to bind such entity, its Affiliates and any representatives it allows to access and use the Services to this Agreement, (b) such entity is responsible for any breach of this Agreement by any of its representatives, and (c) “you” and “your” as used herein (except for in this paragraph) will refer and apply to such entity and its Affiliates that access the Services on its behalf. If you do not have such authority to bind, or if you do not agree to this Agreement in its entirety, you must not use 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.

Catalant may revise this Agreement from time to time, in which case the new Agreement will supersede prior versions. If Catalant makes any material changes to this Agreement, 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 Agreement.

Each Party represents and warrants to the other that: (a) this Agreement has been duly executed and delivered andconstitutes a valid and binding agreement enforceable against such Party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with such Party’s execution, delivery or performance of the Agreement; and (c) the execution, delivery and performance of the Agreement does not and will not violate (i) the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound or (ii) any applicable law or regulation.

This Agreement constitutes 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 the terms of the Agreement and the terms of any Order Form or Statement of Work, the terms of the Order Form or Statement of Work shall control.

Table of Contents:

General Terms and Conditions

1. Access to and Use of the Services

1.1 Right to Use. Subject to compliance by you and your End Users with this Agreement, Catalant hereby grants youa non-exclusive, non-transferable, non-sublicensable, revocable, limited right to access and use the Services for yourinternal business purposes only in accordance with this Agreement and subject to the limitations and restrictions contained herein. Catalant reserves any and all rights not expressly granted to you pursuant to this Agreement. 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.

1.2 Catalant Obligations. During the term of this Agreement, Catalant shall provide general customer support services to you and as identified in an Order Form if applicable. Furthermore, Catalant may change or modify the Services in its sole discretion, including adding or removing features or functions, from time to time, provided that in no event will such modifications materially reduce the overall functionality of the Services provided to you during the term of this Agreement. Catalant shall deploy all updates and upgrades to the Services to you that Catalant provides to its customers generally for no additional charge.

1.3 End Users. “End User” shall mean an individual authorized by you to use the Services. You are responsible for compliance with the terms of this Agreement by your End Users and for any and all (a) acts or omissions of your End Users with respect to the Services and (b) 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. You and your End Users agree to abide by the Catalant Community Standards, which is hereby incorporated into this Agreement. In the event of a conflict between the Catalant Community Standards and this Agreement, this Agreement shall govern and control.

1.4 Accounts and Profiles.

(a) 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 shareany End User’s username or password. You authorize Catalant to assume that any individual using the Services with your End User’s username and password is authorized to act for you. 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.

(b) 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.

(c) 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.

1.5 Restrictions.

You agree, on your behalf and on behalf of your End Users, that: (a) you and your End Users will not use the Services if you are not fully able and legally competent to agree to this Agreement; (b) you and your End Users will only use the Services in full compliance with all applicable laws and this Agreement; and (c) you and your End Users will not use the Services for fraudulent purposes or to engage in any offensive, indecent or objectionable conduct. Further, except as specifically permitted herein or approved in advance in writing by Catalant, you agree that you will not, directly or indirectly: (i) distribute, sell, assign, encumber, transfer, rent, lease, loan, sublicense, modify, time-share or otherwise exploit the Services in any unauthorized manner; (ii) 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; (iii) harvest or scrape any content or data from the Services; (iv) remove or alter any copyright or other proprietary rights notice or restrictive rights legend contained or included in the Services; (v) 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); (vi) utilize the Services to (A) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws or (B) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts agents or programs; (vii) circumvent any functionality that controls access to or otherwise protects the Services; or (viii) permit an End User or your 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 this Agreement and a violation of the rights of Catalant and its licensors.

2. Content

2.1 Your Content. “Content” means any data, content or other materials 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 any Content prohibited by applicable law or the restrictions in this Section.  You hereby grant Catalant a worldwide, non-exclusive, royalty-free, fully-paid license to access, use, reproduce, modify, transmit, display, index, aggregate, process and store the Content as necessary for purposes of the provision and operation of the Services and Account management.

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 this Agreement; and (c) none of your Content: (i) constitutes “protected health information” 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 laws; (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 this Agreement.

2.2 Catalant Obligations for Your Content. Catalant will maintain reasonable physical and technical safeguards to prevent unauthorized disclosure of or access to your Content, in accordance with industry standards. Catalant will not access, view, or process your Content except (a) as provided in this Agreement; (b) as authorized or instructed by you; (c) as required to perform its obligations under this Agreement; or (d) as required by applicable law. Catalant has no other obligations with respect to your Content.

Notwithstanding the foregoing, you acknowledge and agree that Catalant may preserve and/or disclose your Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (i) comply with legal process, applicable laws or government requests; (ii) enforce this Agreement; (iii) respond to claims that any of your Content violates the rights of third parties; or (iv) protect the rights, property, or personal safety of Catalant, its Affiliates, officers, employees, representatives and agents, as well as Services users or the general public.

2.3 Shared Content. You acknowledge and agree that Content that is published on the Services will be available to other users of the Services (“Shared Content”). Shared Content includes (a) profiles and projects published on the Services and (b) comments, reviews, ratings, indicators of satisfaction, and other feedback (including composite and compiled feedback) left by you or other users of the Services (collectively, “User Reviews”). Catalant is not legally responsible for any User Reviews posted or made available on the Services by you or any other users. Catalant reserves the right, but is not obligated, to remove posted User Reviews or information that, in Catalant’s sole judgment, violates this Agreement or negatively affects the Services, diminishes the integrity of the User Review system or otherwise is inconsistent with the business interests of Catalant. You hereby grant Catalant a worldwide, non-exclusive, perpetual, royalty-free, fully-paid license to access, use, reproduce, modify, transmit, display, index, aggregate, process and store the User Reviews you leave about other users of the Services for purposes of the provision, operation and improvement of the Services.

2.4 Aggregated Data. Catalant and its suppliers monitor and collect data and information related to your use of the Services, and you acknowledge and agree that Catalant owns the aggregated and statistical data generated from the provision, operation or use of the Services (“Aggregated Data”), provided that Catalant’s use of the Aggregated Data shall not directly or indirectly reveal your identity.

3. Fees and Payment

3.1 Fees. You shall owe to and pay Catalant all fees and other amounts charged with respect to your use of the Services as specified in any Supplemental Terms, Order Form or Statement of Work governed by this Agreement. For the avoidance of any doubt, all fees and other amounts you incur in connection with a Project (as defined below) are owed to Catalant and subject to the terms of this Agreement.

3.2 Payment Methods. Unless otherwise agreed upon in any Supplemental Terms, Order Form or Statement of Work, Catalant shall invoice you upon the Effective Date of this Agreement. Except as otherwise set forth in an Order Form or Statement of Work, all payments 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. If you require that an invoice be submitted against a purchase order before payment can be made, you will be responsible for issuing such purchase order to Catalant in a timely fashion and your failure to do so will not affect your obligation to pay all fees in accordance with this Agreement.

3.3 Taxes. You shall be responsible for all applicable sales, use or similar taxes, if any, payable with respect to the Services provided under this Agreement or arising out of or in connection with this Agreement 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.

3.4 Books and Records. During the term of this Agreement, and for a period of two (2) years thereafter, each Party will keep complete and accurate books and records sufficient to verify compliance or non-compliance with this Agreement. Each Party will, upon at least thirty (30) days prior written request by the other Party (a “Review Request”), make available to the other Party and its auditors such books and records and provide reasonable cooperation to the extent necessary to verify the accuracy of the amounts owed and charged pursuant to this Agreement. Such Review Requests may not be issued more frequently than once every twelve (12) months.

4. Ownership

4.1 Ownership of the Services. 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 laws. 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.

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 User Reviews. 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 you may have in and to any and all Feedback.

4.3 Ownership of Work Product. Except to the extent provided in a Statement of Work, Catalant is the exclusive owner of all work product delivered by Catalant pursuant to a Statement of Work (“Catalant Work Product”) (including any revisions, modifications and enhancements thereto) and any other software, specifications, documentation, ideas, know-how, techniques, processes, inventions or other intellectual property that Catalant or its subcontractors may develop, conceive or deliver under this Agreement, including all patents, copyrights and other intellectual property rights thereto. This Agreement is not a sale and does not transfer to you any title or ownership in and to the Catalant Work Product, nor does this Agreement convey any rights in or to the Catalant Work Product other than those expressly set forth herein.

5. Confidentiality

5.1 Definition of Confidential Information.As used herein, “Confidential Information” means all confidential and proprietary information of a Party (“Disclosing Party”) disclosed to the other Party (“Receiving Party”) in connection with this Agreement, whether orally or in writing, relating to the business and affairs of the Disclosing Party that is either designated as confidential or that a reasonable person would deem confidential or proprietary given the nature of the information and the circumstances under which it is disclosed. Confidential Information shall include, without limitation, pricing, Content (excluding Shared Content) and non-public information disclosed to the Receiving Party related to the Disclosing Party’s business, systems, operations, strategic plans, clients, pricing, methods, processes, financial data, programs, products, designs, technology and technical information, and marketing plans. Confidential Information shall not include any information that: (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known by the Receiving Party prior to its disclosure by the Disclosing Party; (c) is or becomes available to the Receiving Party on a non-confidential basis from a third party who is not known by the Receiving Party to owe an obligation of confidentiality to the Disclosing Party with respect to such information; or (d) is independently developed by the Receiving Party without access to, use of, or reliance upon the Disclosing Party’s Confidential Information.

5.2 Confidentiality and Non-Use. The confidentiality obligations and use limitations set forth in this Section 5 shall remain in effect for a period of three (3) years from the disclosure of the Confidential Information; provided that all trade secrets shall remain subject to the terms hereof for as long as they are classified as such under applicable law. Each Party agrees to protect the confidentiality of the Confidential Information of the other Party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall either Party exercise less than reasonable care in protecting such Confidential Information; provided that a Receiving Party may disclose Confidential Information of the Disclosing Party to its employees, contractors, subcontractors, agents and/or representatives who have a need to know such Confidential Information and who are bound to protect such Confidential Information under substantially similar terms as required hereby, or to legal, financial or other professional advisors who are providing professional services to the Receiving Party subject to obligations of confidentiality. In addition, without the Disclosing Party’s written permission, the Receiving Party shall not use any Confidential Information of the Disclosing Party other than in connection with fulfilling the obligations or exercising the rights of the Receiving Party under this Agreement (including, without limitation, as may be necessary to support or defend a claim arising under this Agreement).

5.3 Exceptions. If the Receiving Party is required by law, court order or other legal, governmental or judiciary process to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such required disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s expense, if the Disclosing Party undertakes to obtain a protective order or other appropriate remedy. In the event that such protective order or other remedy is not obtained, or the Disclosing Party waives compliance with the provisions hereof, the Receiving Party will disclose only such Confidential Information as is legally required to be disclosed.

5.4 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information in breach of this Section 5, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the Parties that any other available remedies are inadequate.

5.5 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 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.

6. Representations and Warranties

6.1. Catalant represents and warrants that during the term of this Agreement: (a) the Services shall perform materially in accordance with the documentation therefor, (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.

6.2. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, CATALANT MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH REGARD TO THE SERVICES OR ANY ACTIVITIES OR ITEMS RELATED TO THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED BY 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.

7. Limitation of Liability

7.1. TO THE MAXIMUM EXTENT PERMITTED BY 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 THIS AGREEMENT, 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.

7.2. EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 8 OF THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE TOTAL AGGREGATE LIABILITY OF EACH PARTY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED THE AMOUNTS PAID OR PAYABLE BY YOU TO CATALANT FOR YOUR USE OF THE SERVICES DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO LIABILITY.

8. Indemnification

8.1 By Customer. You agree to indemnify, defend and hold harmless Catalant and its Affiliates, officers, directors, 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) (“Claims”) arising from or relating to: (a) your use of the Services; (b) your Content; and (c) your violation of this Agreement.

8.2 By Catalant.

Catalant agrees to indemnify, defend and hold harmless you and your Affiliates, officers, directors,
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 misappropriates any trade secret recognized under the Uniform Trade Secrets Act of that third party or infringes any patent, trademark, or copyright of that third party. If any portion of the Services becomes, or in Catalant’s opinion is likely to become, the subject of such a claim, and Catalant cannot, at its option and expense, (a) procure for you the right to continue using the Services, or any part thereof, (b) replace the Services, or any part thereof, with non-infringing services which do not materially impair the functionality of the Services, or (c) 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 (i) modification of the Services by you or on your behalf by a party other than Catalant, (ii) 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 (iii) use of the Services in violation of this Agreement. This Section 8.2 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.

8.3 Procedure. An indemnifying Party’s (“Indemnitor’s”) obligation under this Section 8 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 this Agreement, 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.

9. Termination

9.1 Termination. Either Party may terminate this Agreement if the other Party materially breaches this Agreement and fails to cure such breach within thirty (30) days of receiving written notice thereof.

9.2 Effect of Termination. Termination shall not affect (a) any liabilities or obligations of either Party arising before 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 this Agreement, or (if applicable) any Order Form or a Statement of Work, at law or in equity, arising from any breaches of such liabilities or obligations. In the event of termination of this Agreement by Catalant pursuant to Section 9.1, all amounts payable by you under this Agreement will become immediately due and payable. Except as otherwise required by law or as otherwise set forth in this Agreement, upon termination, you will no longer have access to your Content on the Services and your 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 law.

9.3 Account Suspension or Revocation. Catalant has the unlimited right, but not the obligation, to suspend, revoke or terminate your Account and/or access to the Services at any time and for any or no reason, including, without limitation, if: (a) you violate this Agreement; (b) Catalant suspects or becomes aware that you have provided false or misleading information to Catalant; (c) Catalant believes, in its sole discretion, that your actions (i) may cause legal liability for Catalant or other users of the Services, (ii) may be contrary to the interests of the Services or its users, or (iii) may involve illicit or illegal activity. If your Account is temporarily or permanently closed, you may not use the Services under the same Account or a different Account or reregister under a new Account without Catalant’s prior written consent.

9.4 Survival. Sections 1.4, 2.1, 2.3, 2.4, 3.3, 3.4, 4, 5, 6, 7, 8, 9, 10 and 11 of this Agreement will survive any termination or expiration hereof.

10. Dispute Resolution

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

10.2 Individual Basis; Jury Trial Waiver. To the fullest extent permitted by applicable law, you and Catalant each agree that any proceeding to resolve any claim, dispute or controversy arising out of or relating to this Agreement (“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.

10.3 Limitation Period. In no event will any Claim, or any other action or proceeding by you (including arbitration under this Section 10) be instituted more than one (1) year after the cause of action arose.

10.4 Jurisdiction. You and Catalant each agree to the exclusive jurisdiction of the federal and state courts located in Boston, Massachusetts, and you and Catalant each agree to submit to the exercise of personal jurisdiction of such courts for the purposes of litigating any applicable dispute or claim.

11. General

11.1 Assignability. Neither Party may assign this Agreement or any of its rights or obligations hereunder without the other Party’s prior written consent. Notwithstanding the foregoing, either Party may assign this Agreement 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 this Agreement not involving a direct competitor of the other Party. Any attempted assignment or transfer in violation of this Section 11.1 will be null and void. Subject to the foregoing restrictions, this Agreement will inure to the benefit of the successors and permitted assigns of the Parties.

11.2 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 you or your 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.

11.3 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. This Agreement will not be construed to create or imply any partnership, agency, joint venture or employment relationship between the Parties.

11.4 Other Websites and Content. 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 your 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.

11.5 Force Majeure. Neither you nor Catalant will be liable for any delay or failure to perform its obligations under this Agreement, except for your payment obligations, due to any cause beyond your or our 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.

11.6 Governing Law. This Agreement and any controversy, dispute or claim arising out of or relating to this Agreement 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 this Agreement.

11.7 Notices; Consent to Electronic Notice. The Parties consent to the use of electronic means to deliver any notices pursuant to this Agreement.  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.

11.8 Purchase Orders. In the event that you issue 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 this Agreement are expressly rejected by Catalant.

11.9 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.

11.10 Severability. If and to the extent any provision of this Agreement is 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.

Supplemental Terms and Conditions

These Supplemental Terms and Conditions (“Supplemental Terms“) contain supplemental service-specific terms that, in addition to the General Terms and Conditions (“Terms“), govern Customer’s access to Catalant’s Expert Marketplace via the Services.

1. Definitions

The following definitions will apply to these Supplemental Terms.  Any capitalized terms not defined herein shall have the meaning in the Agreement.

a) “Expert” means an independent consultant or consulting firm offering Expert Services via Catalant’s Expert Marketplace.
b) “Expert Services” means consulting services performed by Experts.
c) “Project” means an engagement for Expert Services between Customer and an Expert.
d) “Project Agreement” means the contract executed between Customer and an Expert governing a Project.

2. Acknowledgement

Customer acknowledges, agrees and understands that: (a) Catalant does not employ or subcontract with any Expert on behalf of Customer; (b) Catalant does not, in any way, supervise, direct, or control the performance of the Expert Services 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; (d) Catalant makes no representations regarding, and does not guarantee: (i) the reliability, capability, qualifications, background or identities of any Expert, (ii) the quality, safety, security or legality of any services advertised or provided by such Expert, including but not limited to the Expert Services, (iii) the truth or accuracy of the listings and Expert profiles, (iv) the ability of an Expert to deliver Expert Services, or (v) that an Expert can or will actually complete a transaction or Project; and (e) Catalant does not perform any worker classification evaluations for any Projects on which Customer may engage with an Expert. For the avoidance of any doubt, Catalant disclaims any and all liability relating to any of the foregoing. WITHOUT LIMITING THE FOREGOING, EXCEPT AS EXPRESSLY PROVIDED IN THESE SUPPLEMENTAL TERMS, CATALANT MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING OR RELATING TO THE EXPERTS, THE EXPERT SERVICES OR THE PROJECT AGREEMENTS.

3. Customer Responsibilities

3.1 Accounts and Permissions. To access Catalant’s Expert Marketplace, End Users must have an Account with a Profile, which may be shown to other users of Catalant’s Expert Marketplace, unless an End User modifies his or her Profile privacy settings within the Services. 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. Actions communicated to Catalant outside of the Services through email, phone calls, texts or other methods of communication shall have no effect.

Customer is solely responsible for ensuring that its End Users abide by any Customer policies or regulations, including but not limited to, policies on spending approvals or signatory authority.

3.2 Project Agreements between Customers and Experts. To engage an Expert for a Project, Customer will contract directly with that Expert under a Project Agreement, which shall be substantially in the form of this suggested Project Agreement. Alternatively, Customer may provide its own Project Agreement template, provided that each Project Agreement must contain payment terms and conditions substantially similar to, and at least as protective of Catalant as, those included in the suggested Project Agreement. If Catalant determines that Customer has not complied with this requirement, Customer agrees to amend the Project Agreement to comply with this requirement. In addition, Customer and an Expert may enter into any other written agreement that Customer and such Expert deem appropriate (e.g., confidentiality agreements, assignment of rights, etc.) provided that any such agreements do not conflict with, narrow, or expand Catalant’s rights and obligations under these Supplemental Terms.

Customer 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. Customer acknowledges, agrees and understands 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. Customer further acknowledges, agrees and understands that 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. Once Customer has executed a Project Agreement and any amendment thereto with an Expert, Customer must provide Catalant with a copy (redacted, but only if necessary and to the extent necessary) so that Catalant can verify compliance with the requirements herein and receive and make payments in accordance with these Supplemental Terms and such Project Agreement.

3.3 Non-Circumvention. For a period of twelve (12) months from the later of the date on which (a) Customer first identifies an Expert from Catalant’s Expert Marketplace or (b) an Expert completes its last Project with Customer (“Non- Circumvention Period”), Customer will (i) use the Services as its exclusive method to receive Expert Services from that Expert and (ii) not make any complete or partial payments to any such Expert for Expert Services outside of the Services, or otherwise circumvent Catalant’s invoicing and payments process, and any violation of the foregoing restrictions is a material breach of this Agreement. Upon expiration of the Non-Circumvention Period, Customer is free to deal directly with the applicable Expert independently from these Supplemental Terms.

4. Catalant Responsibilities

4.1 Payments Under Project Agreements. Catalant, and not Customer, makes payments to an Expert in connection with each Project Agreement pursuant to the terms between Catalant and each Expert. After an Expert requests payment in connection with a Project Agreement through the Services, Customer shall be prompted via the Services to approve the Expert’s payment request. Only following Customer’s approval through the Services, Catalant shall then make payment to the Expert for Project fees (subject to any fees owed to Catalant) or expense reimbursements.

5. Fees

5.1 Project-Related Fees and Expenses. Customer agrees to pay Catalant all fees and expenses incurred by Customer in connection with a Project. In the case of a fixed fee Project with a Total Professional Fee less than or equal to $20,000, Customer 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, Customer shall be invoiced by Catalant in installments invoiced partially on the Project’s estimated start date and immediately after Customer’s approval via the Services of the previous installment payment to the Expert. In the case of hourly rate Projects, Customer shall be invoiced by Catalant immediately after Customer’s approval via the Services of the Expert’s reported hours. Regardless of project type, Project expenses will be invoiced immediately after Customer’s approval via the Services. “Total Professional Fee” means the sum of the fee owed by Customer for its receipt of Expert Services in connection with a Project and the associated Catalant fee for the Project.

5.2 Employment Fee. If, during the Non-Circumvention Period, Customer hires as an employee an Expert from Catalant’s Expert Marketplace, Customer agrees to pay Catalant a fee of thirty-three percent (33%) of the annualized Total Cash Compensation payable to said Expert as an employee of Customer (the “Employment Fee”). “Total Cash Compensation” means the annualized base salary plus any signing, discretionary or other bonuses or commissions payable to such an 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 hiring an Expert as an employee and Catalant shall have the right, in its sole discretion, to invoice Customer for the Employment Fee as of the Expert’s first day of employment with Customer. In the event the Expert’s employment with Customer is terminated, whether voluntarily or involuntarily, within thirty (30) days of the start of Expert’s employment with Customer, no Employment Fee will be owed by Customer to Catalant. If, during the Non-Circumvention Period, Customer offers a non-employee role to an Expert (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 an Expert is hired by Customer solely via a solicitation initiated through general advertisements and other general circulation materials not directly targeted at such Expert.

5.3 Payment Terms. The terms set forth in Section 3.2 of the Terms shall apply to any and all amounts invoiced by Catalant and payable by Customer under these Supplemental Terms.

6. Indemnification

6.1 Indemnification by Catalant.Subject to the indemnification procedures set forth in the Agreement, Catalant agrees to indemnify, defend and hold harmless Customer Indemnitees from 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 Agreement.

6.2 Indemnification by Customer. Subject to the indemnification procedures set forth in the Agreement, Customer agrees to indemnify, defend and hold harmless Catalant against any third party Claims arising out of, relating to, or alleging (a) a violation of any state or federal discrimination law, harassment law or other similar law that is brought against Catalant arising out of any action or conduct occurring while an Expert is under Customer’s superintendence or (b) a violation by Customer of a state or federal wage-hour law, state or federal tax law, or workers compensation law arising out of Customer’s engagement of an Expert under a Project Agreement.

7. Termination

7.1 Effect of Termination. For the avoidance of any doubt, termination of the Agreement does not automatically terminate or otherwise impact any Project or Project Agreement in force between Customer and an Expert. In the event there are any ongoing Projects at the time of termination of the Agreement, (a) the Agreement will continue to apply and be in effect until all Projects have been completed or otherwise terminated pursuant to the terms of the applicable Project Agreement and (b) Customer will continue to be obligated to pay any amounts due under the Agreement and any applicable Project Agreement until completion or termination of all ongoing Projects. For the avoidance of any doubt, termination of the Agreement does not relieve Customer of its obligations with respect to the Non-Circumvention Period set forth above.

7.2 Survival. Sections 2, 3, 5.2, 6 and 7 of these Supplemental Terms shall survive any termination or expiration of the Agreement.