Last revised: January 4, 2022
PLEASE READ THESE TERMS CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS, BINDING ARBITRATION AGREEMENT, AND A WAIVER OF JURY TRIALS AND CLASS ACTIONS AS DETAILED IN SECTION 11.
Catalant may revise these Terms from time to time, in which case the new Terms will supersede prior versions. If Catalant makes any material changes to these Terms, as determined by Catalant in its sole discretion, Catalant will provide you with prior notice through the Services or by sending you an email to the email address you have registered with Catalant. Your continued use of the Services after the effective date of any such revision constitutes your acceptance of the revised Terms.
1 ACCESS TO AND USE OF THE SERVICES
1.1 Right to Use.
Subject to compliance by you and your End Users, as applicable, with these Terms, Catalant hereby grants you a non-exclusive, non-transferable, non-sublicensable, revocable, limited right to access and use the Services for your internal business purposes only in accordance with these Terms and subject to the limitations and restrictions contained herein. Catalant reserves any and all rights not expressly granted to you pursuant to these Terms. The limited rights granted to you to access and use the Services do not constitute the sale of or license to any software program or other intellectual property. Catalant may change or modify the Services in its sole discretion, including adding or removing features or functions, from time to time.
1.2 End Users.
“End User” shall mean an individual authorized by you to use the Services. You are responsible for compliance with the terms and conditions of these Terms 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.
1.3 Accounts and Profiles.
(a) To access and use the Services as an Expert (as defined below), you and your End Users, as applicable, must register for an expert account (“Account”) with a username and password. You and your End Users, as applicable, are responsible for ensuring the security of any Account and agree not to share your or any 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 email@example.com immediately if you suspect that a password has been lost or stolen, if you suspect or become aware of any unauthorized use of your or 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 entering into binding contracts on your behalf.
(c) You and all your End Users, as applicable, must create a user profile (“Profile”), which may be shown to other users of the Services unless you modify your, or an End User modifies his or her, Profile privacy settings within the Services. You and your End Users, as applicable, 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, as applicable, 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. Catalant reserves the right to validate your and your End User’s Account and Profile information at any time. In addition to complying with the terms of these Terms, you and your End Users, as applicable, agree to the Catalant Community Standards which is hereby
incorporated into these Terms.
The Services are available only to legal entities and individuals who are at least eighteen (18) years old and are otherwise capable of forming legally binding contracts under applicable law. By creating an Account or authorizing End Users to create an Account, you represent and warrant that you and your End Users are not prohibited or limited in any way from acting as an Expert on the Services or from performing Expert Services for a Client with whom you enter into a Project Agreement (as defined below) or with respect to a Project (as defined below) for which you are engaged through the Services by (a) any contract (e.g., employment, consulting, confidentiality or non-disclosure agreements), (b) your current employer’s policies or codes of conduct if you are employed, (c) any similar policies or obligations that limit your conduct in any way, or (d) any rule of conduct applicable to your profession or industry or any similar laws, rules or regulations. Further, to the extent your ability to provide Expert Services is limited in any way, you represent and warrant that you have obtained all necessary consents or waivers (e.g., the consent of your employer, any company or organization for which you have consulted, or any affiliated academic or government organization) to offer your Expert Services as an Expert via the Services. Notwithstanding the foregoing, Catalant may determine your or your End User’s eligibility to create an Account on the Services in its sole discretion.
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 these Terms; (b) you and your End Users will only use the Services in full compliance with all applicable laws and these Terms; 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 these Terms and a violation of the rights of Catalant and its licensors.
2.1 Your Content.
“Content” means any data, content or other materials you or your End Users, as applicable, upload, post, publish, submit, send, store or display within the Services, including any work product related to Expert Services provided to Clients. 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 these Terms; 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 these Terms.
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 reserves the right to delete your Content associated with a Project within thirty (30) days after the end of such Project. 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 these Terms; (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 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 these Terms 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. SERVICES-SPECIFIC TERMS
3.1 Relationship of the Parties.
The Services provides a venue for you to meet and offer your professional or consulting services (“Expert Services”) as an individual independent consultant or consulting firm via Catalant’s Expert Marketplace (“Expert”) to individuals or organizations who are in the market for such Expert Services (“Clients”) for project-based work (“Projects”). As an Expert, you acknowledge and agree that the relationship established under these Terms between you and Catalant is that of a subscriber and a software-as-a-service provider, respectively, and that: (a) these Terms will not be construed as creating a joint venture, partnership, franchise, agency or employment relationship between Catalant and you or any of your End Users; (b) the Parties will have no power or authority to assume or create any obligation or responsibility on behalf of each other; (c) Catalant does not, in any way, supervise, direct, or control your performance of Expert Services; (d) Catalant is not a party to any contract you may enter into with Clients and will not have any liability or obligations whatsoever under any such contracts; and (e) neither you nor any of your End Users, principals, employees or agents (if applicable) shall be entitled to participate in or receive any compensation or benefits from Catalant that Catalant provides or makes available to its employees pursuant to legal requirements or otherwise, including, without limitation, workers’ compensation insurance, travel accident insurance, medical/dental insurance, life insurance, short-term and/or state disability insurance or benefits, long-term disability insurance, holiday pay, sick pay, paid vacation, bonuses, salary continuation pay, leaves of absence (paid or unpaid), pension plan benefits, retire savings plan benefits or lease vehicle benefits. You are solely responsible for: (i) compensating any of your End Users, principals, employees and agents who provide any services to Catalant or Client on your behalf, including, without limitation, wages and employee benefits; (ii) reporting to all applicable government agencies all amounts paid to such End Users, principals, employees and agents; (iii) withholding and paying all payroll taxes including, without limitation, unemployment insurance, Federal Insurance Contributions Act and Federal Unemployment
Tax Act; and (iv) complying with all applicable laws with respect to your End Users, principals, employees and agents including, without limitation, those requiring and regulating workers’ compensation insurance, reporting of independent contractors, issuance of Forms W-2 and 1099, the Immigration Reform Control Act, and equal employment opportunity laws.
3.2 Project Agreement between Clients and Experts. “Project Agreement” means the contract executed between you and a Client governing a Project. If you and a Client enter into a Project Agreement, the Project Agreement is a contractual relationship directly and solely between you and such Client. Each Project Agreement shall be substantially in the form of this suggested Project Agreement. Alternatively, a Client or you may provide its or your own Project Agreement template, provided that each Project Agreement must contain payments 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 you have not complied with this requirement, you agree to amend the Project Agreement to comply with this requirement. In addition, you and a Client may enter into any other written agreement that you and such Client deem appropriate (e.g., confidentiality agreement, assignment of rights, etc.) provided that any such agreements do not conflict with, narrow or expand Catalant’s rights and obligations under these Terms.
You and Client are responsible for the negotiation of the terms and conditions of a Project Agreement. 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 a Client will not, under any circumstance, create an employment, subcontracting or other service relationship between Catalant and you. Once you have executed a Project Agreement and any amendment thereto with a Client, you 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 Terms and such Project Agreement.
3.3 Project-Related Compliance.
You understand and agree that, as a condition of a Project with a Client, you and your employees or subcontractors performing Expert Services may be subject to certain compliance screenings such as a background check screening, drug screening and worker classification evaluation. To the extent any such screenings are required, you and your End Users, as applicable, agree to provide true, accurate and complete information related to such screenings.
3.4 E&O Insurance Coverage.
You agree that:
(a) This is not a contract of insurance or a contract to procure insurance on your behalf.
(b) Catalant is not an insurer or insurance producer and is not licensed as such. Catalant does not sell, solicit or negotiate insurance for any class or classes of insurance, is not authorized to do so on your behalf, and has not done so on your behalf. Catalant does not exchange contracts of insurance by any means, for money or its equivalent, on behalf of an insurance company, has not done so on your behalf, and is not authorized to do so on your behalf. Catalant does not attempt to sell insurance or ask or urge anyone to apply for a particular kind of insurance from a particular company, has not done so on your behalf, and is not authorized to do so on your behalf. Catalant does not confer directly with or offer advice directly to purchasers or prospective purchasers of a particular contract of insurance concerning any of the substantive benefits, terms or conditions of an insurance contract, does not sell insurance or obtain insurance from insurers for purchasers, has never done so on your behalf and is not authorized to do so on your behalf.
(c) At all times while you are engaged in Expert Services, you will maintain errors and omissions insurance to insure against your liability for actual or alleged wrongful acts committed in your capacity as an Expert in an amount not less than $2,000,000 in the aggregate for any one-year policy period (“Coverage”). You will maintain written evidence of such Coverage satisfactory to Catalant, and you acknowledge and agree that Catalant shall have the right to request evidence of such Coverage upon request at any time. In response, you may satisfy this obligation by sending an email to firstname.lastname@example.org with the subject line “Evidence of Coverage” along with written evidence of Coverage satisfactory to Catalant, including but not limited to a current certificate of insurance. Catalant will notify you if the evidence of Coverage provided is not satisfactory. Alternatively, in the event that you do not have or cannot provide satisfactory evidence of such Coverage, you acknowledge and agree that Catalant will extend such Coverage to you, the scope of which shall be limited solely to Projects completed through the Services, and in exchange, you agree that Catalant shall be entitled to collect from you $2.00 as a deduction from your first payment on each such Project for which Catalant has extended Coverage.
For a period of twelve (12) months from the later of the date on which (a) you first identify a Client or are first identified by Client from the Services or (b) you complete your last Project with a Client (such period, the “Non-Circumvention Period”), you will use the Services as your exclusive method to bid for Expert Services, directly or indirectly, with that Client and/or that Clients’ business entity or arising out of your relationship with that Client and/or that Client’s business entity. Furthermore, during the Non-Circumvention Period, you shall not encourage, solicit or accept complete or partial payment for Expert Services outside of the Services, or otherwise circumvent either (i) Catalant’s contractual relationships with the Client or with you, or (ii) the Services’ payment methods. Any violation of the foregoing restrictions is a material breach of these Terms. By way of illustration and not limitation of the foregoing, within the Non-Circumvention Period, you will not: (A) submit proposals to, deliver services to, invoice or receive payments or other consideration, from any Clients for whom you have performed services or been introduced to through the Services except via the Services and in accordance with these Terms; (B) contact a Client outside of the Services in order to secure a Project that the Client has posted on the Services; or (C) invoice or report on the Services an amount lower than that actually agreed to by you through the Services. Upon expiration of the Non-Circumvention Period, you are free to deal directly with the applicable Client independently from these Terms. YOU WILL NOTIFY CATALANT IMMEDIATELY IF A CLIENT SUGGESTS MAKING PAYMENTS TO YOU OUTSIDE OF THE SERVICES WITHIN THE NON CIRCUMVENTION PERIOD.
4. FEES AND PAYMENT
Catalant collects fees and amounts owed for each Project that is initiated on the Services. When you submit a bid for a Project, Catalant will display the amount of any fees that Catalant will deduct from the bid amount prior to making payment to you. All fees retained by Catalant are non- cancelable and non-refundable.
Except as otherwise stated herein, Catalant is solely responsible for paying you the amounts owed to you pursuant to a Project, and Catalant or a third-party service provider will pay such funds to you pursuant to the applicable agreement governing the Project. You are responsible for requesting payment in connection with a Project through the Services (including submitting timesheets, invoices and supporting documentation) in a timely manner and in accordance with the applicable agreement governing the Project. Payment of Project fees (minus any fees owed to Catalant, which shall be deducted and retained by Catalant) by Catalant or a third party service provider shall be made to you following Client approval of your payment request through the Services in accordance with the following payment schedule:
If such Client approval date is on or between the 1st and 15th of a calendar month, payment shall be made to you on the 16th of the following calendar month. If such Client approval date is on or between the 16th and the last day of a calendar month, payment shall be made to you on the 1st of the second month following the calendar month of approval (e.g. If Client approves on March 17th, payment shall be made to you on May 1st). Notwithstanding the foregoing, if the payment date falls on a bank holiday or any other day when banks are closed, then such payment shall be made to you on the following business day when banks are open.
For the avoidance of any doubt, Catalant shall not make any payments to you without such Client approval through the Services. Nonetheless, upon such approval by Client, Catalant shall owe such payment to you regardless of whether Catalant receives payment from the Client for amounts owed by Client to Catalant under the applicable agreement governing the Project. Unless otherwise agreed upon in the applicable agreement governing the Project, all payments to you shall be made in United States dollars, and you shall be responsible for bearing the cost of any exchange rate fluctuations or transaction fees. In cases of fraud, abuse or violation of these Terms, Catalant reserves the right to set off against any amounts due to you via the Services any damages or costs Catalant incurs as a result of such fraud, abuse or violation. Notwithstanding the foregoing, in the event that you are classified as an employee with respect to a Project resulting from a compliance evaluation required by a Client, you may be required to become an employee of a third-party payrolling provider in order to provide Expert Services to such Client. If you become an employee of a third-party payrolling provider, then such payrolling provider will be responsible for making payments to you and payments will be made in accordance with such payrolling provider’s processes and timelines. If you start performing Expert Services before you have a fully-executed Project Agreement or other applicable agreement governing a Project and before you have completed all compliance requirements, you acknowledge that you may not be paid for Expert Services performed.
4.3 Tax Reporting.
Pursuant to Section 6050W of the Internal Revenue Code, Catalant will provide a 1099-K form to the U.S. Internal Revenue Service for any Expert based in the United States who is paid over $600.00 through the Services in a single calendar year. Notwithstanding anything to the contrary contained within these Terms, Expert is required to upload tax information using the Payoneer Tax Service in order to receive payments for Services. Otherwise, Catalant will have no responsibility for determining the necessity of or for issuing any U.S. or foreign tax forms, or for determining, remitting, or withholding any type of taxes or similar levies applicable to Expert fees and you will be solely responsible for determining whether you are required by applicable law to file any U.S. or foreign tax forms or remit to the appropriate authorities any taxes or similar charges applicable to the amounts Catalant remits to you, as well as filing any such tax forms and remitting any such taxes or charges to the appropriate U.S. or foreign authorities. You acknowledge and agree that you are solely responsible for (a) all tax liability associated with payments received from Catalant in connection with a Project, and that Catalant will not withhold any taxes from payments made to you; (b) determining whether you are required by applicable law to issue any particular invoices for Expert fees and for issuing any invoices so required; (c) determining whether you are required by applicable law to remit to the appropriate authorities any value added tax or any other taxes or similar charges applicable to Expert fees and remitting any such taxes or charges to the appropriate authorities, as necessary; and (d) if outside of the U.S., determining if Catalant is required by applicable law to withhold any amount of the Expert fees and for notifying Catalant of any such requirement and indemnifying Catalant for any requirement to pay any withholding amount to the appropriate authorities (including penalties and interest).
4.4 Books and Records.
During the term of these Terms, and for a period of two (2) years thereafter, you will keep complete and accurate books and records sufficient to verify compliance or non- compliance with these Terms and the terms of any Project Agreement or other applicable agreement governing a Project. You will, upon at least ten (10) business days prior written request by Catalant (a “Review Request”), make available to Catalant 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 these Terms and the terms of any Project Agreement or other applicable agreement governing a Project.
5.1 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.
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.
5.3 Ownership of Work Product.
For the purposes of these Terms, “Work Product” means all inventions, discoveries, designs, developments, methods, modifications, improvements, ideas, products, processes, algorithms, databases, computer programs, formulae, techniques, know-how, trade secrets, graphics or images, and audio or visual works and other works of authorship, whether or not patentable or copyrightable, that are created, made, conceived or reduced to practice by you for a Client in the course of a Project. Ownership of Work Product shall be determined by the applicable agreement governing a Project. You hereby represent and warrant that you will not incorporate into any Work Product any confidential information or trade secrets of any other person or entity, or any material in which any other person or entity asserts any copyright, patent right, trademark, or other proprietary or intellectual property right.
6.1 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 these Terms, 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, (a) the identity of Clients; (b) information about Projects; (c) information about any actual or potential business, investment or trading decisions, or transactions of any Client; (d) the terms and conditions in all Project Agreements or other agreements executed with Clients or Catalant; (e) your Content (excluding Shared Content); and (f) any other non-public or proprietary information of Catalant or Clients. Confidential Information shall not include any information that: (i) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (ii) was known by the Receiving Party prior to its disclosure by the Disclosing Party; (iii) is or becomes available to the Receiving Party on a non-confidential basis from a third party without breach of any obligation owed to the Disclosing Party; or (iv) is independently developed by the Receiving Party without access to, use of, or reliance upon the Disclosing Party’s Confidential Information.
6.2 Confidentiality and Non-Use.
The confidentiality obligations and use limitations set forth in this Section 6 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 these Terms (including, without limitation, as may be necessary to support or defend a claim arising under these Terms). Neither Party may engage in any purchasing or selling of securities based on any Confidential Information or any material, non-public information and may not communicate any such information to any person or entity when it is reasonably foreseeable that such person is likely to purchase or sell securities based on such information.
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.
If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information in breach of this Section 6, 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.
7. REPRESENTATIONS AND WARRANTIES
7.1 Each Party represents and warrants to the other that: (a) these Terms have been duly executed and delivered and constitutes 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 these Terms; and (c) the execution, delivery and performance of these Terms 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.
7.2 EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, CATALANT MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH REGARD TO THE SERVICES, OR ANY ACTIVITIES OR ITEMS RELATED TO THESE TERMS. 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.
8. LIMITATION OF LIABILITY
8.1 TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL CATALANT BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR INDIRECT OR SIMILAR LOSSES OR DAMAGES OF ANY NATURE INCLUDING, BUT NOT LIMITED TO, LITIGATION COSTS, 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, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY,
WHETHER IN TORT, CONTRACT OR OTHERWISE, EVEN IF CATALANT 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.
8.2 TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE TOTAL AGGREGATE LIABILITY OF CATALANT TO YOU ARISING OUT OF OR IN CONNECTION WITH THESE TERMS WILL NOT EXCEED THE AMOUNTS REMITTED TO YOU BY CATALANT DURING THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO LIABILITY.
9.1 You agree to indemnify 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) arising from or relating to: (a) your use of the Services; (b) any Expert Services you provide; (c) your Content; and (d) your violation of these Terms.
Subject to your obligation to complete Expert Services for which you are engaged, you have the right to cancel your Account at any time upon notice to Catalant, and Catalant has the unlimited right, but not the obligation, to suspend, revoke or terminate your or your End User’s Account and/or access to the Services at any time and for any reason, including, without limitation, if: (a) you or your End Users, as applicable, violate these Terms; (b) Catalant suspects or becomes aware that you or your End Users, as applicable, have provided false or misleading information to Catalant or a Client; or (c) Catalant believes, in its sole discretion, that your or your End User’s actions, as applicable, (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 or your End User’s Account is temporarily or permanently closed, you and your End Users 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.
10.2 Effect of Termination.
Cancellation or termination of your Account shall not affect (a) any liabilities or obligations of either Party arising before such cancellation or termination or out of the events causing such cancellation or termination, or (b) any damages or other remedies to which a Party may be entitled under these Terms or any agreement governing a Project, at law or in equity, arising from any breaches of such liabilities or obligations. Except as otherwise required by law or as otherwise set forth in these Terms, upon cancellation or termination of your Account, 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. For the avoidance of any doubt, cancellation or termination of your Account does not automatically terminate or otherwise impact any Project, Project Agreement or other agreement governing a Project in force at such time. In the event there are any ongoing Projects at the time of cancellation or termination of your Account, these Terms will continue to apply and be in effect until all Projects have been completed or otherwise terminated pursuant to the terms of the applicable agreement governing the Project. For the avoidance of any doubt, cancellation or termination of your Account does not relieve you of your obligations with respect to the Non-Circumvention Period set forth in Section 3.5.
Sections 1.3, 2.1, 2.3, 2.4, 3.1, 3.2, 3.5, 4.3, 4.4, 5, 6, 7, 8, 9, 10, 11 and 12 of these Terms will survive any termination or expiration hereof.
11. DISPUTE RESOLUTION
11.1 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.
11.2 Binding Arbitration.
Any dispute or claim that remains unresolved after the informal dispute resolution described in Section 11.1, except for disputes relating to the infringement of Catalant’s intellectual property rights or the access or use of the Services in violation of these Terms (a “Claim”), will be resolved by binding arbitration, rather than in court, provided that you may assert Claims in small claims court located in Suffolk County, Massachusetts if your Claims qualify.
11.3 No Judge or Jury.
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of these Terms as a court would.
11.4 Arbitrator and Rules.
The arbitration will be conducted before a neutral single arbitrator, whose decision will be final and binding, and the arbitral proceedings will be governed by the AAA Commercial Arbitration Rules, Consumer Due Process Protocol, and Supplementary Procedures for Resolution of Consumer Related Disputes. These rules can be found on the AAA website at www.adr.org.
11.5 Starting an Arbitration.
To begin an arbitration proceeding, you must send Catalant a notice of dispute, in writing, setting forth your name, address and contact information, the facts of the dispute and relief requested. You must send your notice of legal dispute to Catalant at the following email address: email@example.com. Catalant will send any notice of dispute to you at the email address you have registered with us.
11.6 Format of Proceedings.
The arbitration will be conducted, at the option of the Party seeking relief, by telephone, online, or based solely on written submissions.
If you initiate arbitration, your arbitration fees will be limited to the filing fee set forth in the AAA’s Consumer Arbitration Rules. Unless the arbitrator finds the arbitration was frivolous or brought for an improper purpose, Catalant will pay all other AAA and arbitrator’s fees and expenses.
11.8 Individual Basis; Jury Trial Waiver.
To the fullest extent permitted by applicable law, you and Catalant each agree that any proceeding to resolve a Claim 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”). If for any reason a Claim proceeds in court rather than in arbitration, 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 Claim 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.
11.9 Limitation Period.
In no event will any Claim, or any other action or proceeding by you (including arbitration under this Section 11) be instituted more than one (1) year after the cause of action arose.
Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The United Nations Conventions on Contracts for the International Sale of Goods will have no applicability.
If a court of competent jurisdiction finds the foregoing arbitration provisions invalid or inapplicable, 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.
11.12 Opting Out.
If you do not want to arbitrate disputes with Catalant and you are an individual, you may opt out of this arbitration agreement by sending an email to firstname.lastname@example.org within thirty (30) days of the first date you access or use the Services.
You may not assign these Terms or any of your rights or obligations hereunder without Catalant’s prior written consent. Catalant may freely assign these Terms. Any attempted assignment or transfer in violation of this Section 12.1 will be null and void. Subject to the foregoing restrictions, these Terms will inure to the benefit of the successors and permitted assigns of the Parties.
12.2 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, as applicable, 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, as applicable, 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, as applicable, 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, as applicable, 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) that no Content created or submitted by you or your End Users, as applicable, 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.
12.3 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 way 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.
12.4 Force Majeure.
Neither you nor Catalant will be liable for any delay or failure to perform its obligations under these Terms due to any cause beyond your or Catalant’s 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.
12.5 Governing Law.
These Terms and any controversy, dispute or claim arising out of or relating to these Terms will be governed by and construed in accordance with the laws of the jurisdiction in which you reside. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to these Terms.
12.6 Notices; Consent to Electronic Notice.
You consent to the use of electronic means to deliver any notices pursuant to these Terms. Notices will be given: (a) by Catalant via email (in each case to the email address that you provided when registering for your Account); (b) a reasonably prominent posting on the Services; or (c) by you via email to email@example.com.
12.7 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.
If and to the extent any provision of these Terms 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.
12.9 Entire Agreement.
These Terms and any exhibits or schedules incorporated herein by reference set forth the entire agreement and understanding of the Parties relating to the subject matter herein and cancels and supersedes all prior discussions, agreements, understandings, statements, proposals, representations, warranties and other communications, whether written or oral, between the Parties.