KatalystDI Terms of Service
Last updated: October 26, 2022
These Terms and Conditions ("Legal Terms"), govern the use of the Services (as defined below). Additional terms and conditions may apply to your use of modules in connection with the Services. These Legal Terms set out the rights and obligations of all users regarding the use of the Services.
Company may change the Legal Terms from time to time. The latest Legal Terms are posted on the Company's website at https://www.katalystdi.com/en/kdi_eula. It is your responsibility to regularly review the Legal Terms on the website to ensure that you have an understanding of the current Legal Terms under which you are permitted to use the Services.
"Access Credentials" means any user name, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device, used alone or in combination, to verify an individual's identity and authorization to access and use the Services.
"Action" means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.
"Affiliate" of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person.
"Company" means Katalyst Holdco, LP, a Delaware limited partnership and its Affiliates.
"Company Disabling Device" means any software, hardware, or other technology, device, or means (including any back door, time bomb, time out, drop dead device, software routine, or other disabling device) used by Company or its designee to disable your access to or use of the Services automatically with the passage of time or under the positive control of Company or its designee.
"Company Materials" means the Services, Specifications, Documentation, and Company Systems and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by Company or any Subcontractor in connection with the Services or otherwise comprise or relate to the Services or Company Systems. For the avoidance of doubt, Company Materials include Resultant Data and any information, data, or other content derived from Company's monitoring of your access to or use of the Services, but do not include Your Data.
"Company Personnel" means all individuals involved in the performance of Services as employees, agents, or independent contractors of Company or any Subcontractor.
"Company Systems" means the information technology infrastructure used by or on behalf of Company in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Company or through the use of third-party services.
"Documentation" means any manuals, instructions, or other documents or materials that the Company provides or makes available to you in any form or medium and which describe the functionality, components, features, or requirements of the Services or Company Materials, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof.
"Harmful Code" means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network; or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data Processed thereby; or (b) prevent you from accessing or using the Services or Company Systems. Harmful Code does not include any Company Disabling Device.
"Intellectual Property Rights" means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
"Law" means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
"Losses" means any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
"Person" means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
"Platform" means the KatalystDI platform.
"Process" means to take any action or perform any operation or set of operations that the Services are capable of taking or performing on any data, information, or other content. "Processing" and "Processed" have correlative meanings.
"Representatives" means, with respect to a party, that party's and its Affiliates' employees, officers, directors, consultants, agents, and legal advisors.
"Resultant Data" means data and information related to your use of the Services that is used by Company in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
"Sales Order" means the purchase order for specific Services and placed by you.
"Services" means, collectively, your use and access to the Platform and the software programs and provided with the use of the Platform.
"Specifications" means the specifications for the Services set forth in the Documentation.
"Third-Party Materials" means materials and information, in any form or medium, including any software, documents, data, content, specifications, products, equipment, or components of or relating to the Services that are not proprietary to Company.
"Your Data" means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly, from you by or through the Services. For the avoidance of doubt, Your Data does not include Resultant Data or any other information reflecting the access or use of the Services by or on behalf of you.
"Your Systems" means the information technology infrastructure used by or on behalf of you in connection with the Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by you or through the use of third-party services.
2. Legal Capacity
You represent and warrant that you possess the legal right, capacity and ability to agree to these Legal Terms and use the Services in accordance with them. If you are using the Services on behalf of a corporation or other organization, you represent and warrant that you have the ability to agree to these Legal Terms on behalf of such organization and all references to "you" throughout these Legal Terms will include such organization, jointly and severally with you personally.
Company grants to you a non-exclusive, non-transferable (except in compliance with these Legal Terms), terminable, revocable right to access and use the Services and to use the Documentation ("License"). This License and the Access Credentials provided to you by Company are granted solely for your internal business purposes in connection with your use of the Services.
4. Third-Party Materials
The Services may include software, content, data, or other materials, including related documentation, that are owned by Persons other than Company and that are provided to you on licensee terms that are in addition to and/or different from those contained in these Legal Terms.
5. Service and System Control
Except as otherwise expressly provided herein, as between the parties:(a) Company has and will retain sole control over the operation, provision, maintenance, and management of the Company Materials; and
(b) You have and will retain sole control over the operation, maintenance, and management of, and all access to and use of, Your Systems, and sole responsibility for all access to and use of the Company Materials by any Person by or through Your Systems or any other means controlled by you, including any: (i) information, instructions, or materials provided by you to the Services or Company; (ii) results obtained from any use of the Services or Company Materials; and (iii) conclusions, decisions, or actions based on such use.
6. Reservation of Rights
Nothing herein grants any right, title, or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services, Company Materials, or Third-Party Materials, whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the Services, the Company Materials, and the Third-Party Materials are and will remain with Company and the respective rights holders in the Third-Party Materials.
Company reserves the right, in its sole discretion, to make any changes to the Services and Company Materials that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of Company's services to its customers; (ii) the competitive strength of or market for Company's services; or (iii) the Services' cost efficiency or performance; or (b) to comply with applicable Law. Without limiting the foregoing, either party may request in writing changes to the Services. No requested changes will be effective unless and until memorialized in a written change order signed by both parties.
Company may from time to time in its discretion engage third parties to perform Services (each, a "Subcontractor").
9. Suspension or Termination of Service.
Company may, directly or indirectly, and by use of a Company Disabling Device or any other lawful means, suspend, terminate, or otherwise deny your, or any other Person's access to or use of all or any part of the Services or Company Materials, without incurring any resulting obligation or liability, if: (a) Company receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Company to do so; or (b) Company believes, in its reasonable discretion, that: (i) you have failed to comply with these Legal Terms, or accessed or used the Services beyond the scope of the rights granted or for an unauthorized purpose or in any manner that does not comply with any instruction or requirement of the Specifications; or (ii) you have been, or are likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Services. This Section 9 does not limit any of Company's other rights or remedies, whether at law, in equity.
10. Use Restrictions
10.1 Use RestrictionsYou shall not, and shall not permit any other Person to, access or use the Services or Company Materials except as expressly permitted by these Legal Terms and, in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, you shall not, except as expressly permitted hereunder:
(a) Use the Services, Platform, Company Systems to which you may have access, or Resultant Data in a manner which violates any applicable Law or known third party rights;
(b) copy, modify, or create derivative works or improvements of the Services or Company Materials, or combine the Services or any part thereof with, or incorporate the Services or any part thereof in, any other programs;
(c) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Services or Company Materials to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service;
(d) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Services or Company Materials, in whole or in part;
(e) bypass or breach any security device or protection used by the Services or Company Materials or access or use the Services or Company Materials other than through the use of your own then valid Access Credentials;
(f) input, upload, transmit, or otherwise provide to or through the Services or Company Systems, any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code;
(g) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services, Company Systems, or Company's provision of services to any third party, in whole or in part;
(h) remove, delete, alter, or obscure any trademarks, Specifications, Documentation, EULA, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Services or Company Materials, including any copy thereof;
(i) access or use the Services or Company Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction, or disclosure of the data of any other Company customer), or that violates any applicable Law;
(j) access or use the Services or Company Materials for purposes of competitive analysis of the Services; the development, provision, or use of a competing software service; or product or any other purpose that is to the Company's detriment or commercial disadvantage; or
(k) otherwise access or use the Services or Company Materials beyond the scope of the authorization granted under this Section 10.
11. Your Obligations
11.1 Service Usage
You shall at all times ensure that your usage of the Services or Company Materials, including Resultant Data, is only intended to achieve integration efficiencies and facilitates competitive functioning of the market in which you operate.
11.2 Your Systems
You shall at all times: (a) set up, maintain, and operate in good repair and in accordance with the Specifications all of Your Systems on or through which the Services are accessed or used; (b) provide Company Personnel with such access to your premises and Your Systems as is necessary for Company to perform the Services in accordance with the Availability Requirement (as defined below) and Specifications; and (c) provide all cooperation and assistance as Company may reasonably request to enable Company to exercise its rights and perform its obligations under and in connection with these Legal Terms.
11.3 Effect of Your Failure or Delay
Company is not responsible or liable for any delay or failure of performance caused in whole or in part by your delay in performing, or failure to perform, any of your obligations (each, a "Customer Failure").
11.4 Corrective Action and Notice
If you become aware of any actual or threatened prohibited activity hereunder, you shall immediately: (a) take all reasonable and lawful measures within your control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and Company Materials and permanently erasing from Your Systems and destroying any data to which any Person has gained unauthorized access); and (b) notify Company of any such actual or threatened activity.
12 Service Levels and Credits; Software Support
12.1 Service Levels
Subject to the terms and conditions hereunder, Company will use commercially reasonable efforts to make the Services Available at least 99.5% of the time as measured over the course of a calendar month, excluding unavailability as a result of any of the Exceptions described below in this Section 12.1 (the "Availability Requirement"). "Service Level Failure" means a material failure of the Services to meet the Availability Requirement. "Available" means the Services are available for access and use by you over the Internet and operating in material accordance with the Specifications. For purposes of calculating the Availability Requirement, the following are "Exceptions" to the Availability Requirement, and neither the Services will be considered un-Available nor any Service Level Failure be deemed to occur in connection with any failure to meet the Availability Requirement or impaired ability of you to access or use the Services that is due, in whole or in part, to any: (a) act or omission by you/access to or use of the Services by you, or using your Access Credentials, that does not strictly comply with these Legal Terms and the Specifications; (b) Customer Failure; (c) your Internet connectivity; (d) Force Majeure Event; (e) failure, interruption, outage, or other problem with any software, hardware, system, network, facility, or other matter not supplied by Company; (f) Scheduled Downtime; or (g) disabling, suspension, or termination of the Services pursuant to Section 9.
12.2 Scheduled Downtime
Company will use commercially reasonable efforts to: (a) schedule downtime for routine maintenance of the Services during the Company System's least-accessed, non-business hours; and (b) give you prior notice of all scheduled outages of the Services ("Scheduled Downtime").
12.3 Data Backup
The Services do not replace the need for you to maintain regular data backups or redundant data archives. COMPANY HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF YOUR DATA.
13.1 Information Security
Company will employ security measures designed to ensure the security, confidentiality, and integrity of Company Materials, the Platform, Services, Company Systems, and Your Data which is Processed by the Platform or Services in accordance with Company's security requirements as provided to you from time to time.
13.2 Data Breach Procedures
Company maintains a data breach plan in accordance with industry standard practices and shall implement the procedures required under such data breach plan on the occurrence of a data breach (as defined in such plan).
13.3 Your Control and Responsibility
You have and will retain sole responsibility for: (a) all of Your Data, including its content and use; (b) all information, instructions, and materials provided by or on behalf of you in connection with the Services; (c) Your Systems; (d) the security and use of your Access Credentials; and (e) all access to and use of the Services and Company Materials directly or indirectly by or through Your Systems or your Access Credentials, with or without your knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.
13.4 Access and Security
You shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards reasonably necessary to: (a) securely administer the distribution and use of Access Credentials and protect against any unauthorized access to or use of the Services or Company Materials, including Resultant Data; and (b) control the content and use of Your Data, including the uploading or other provision of Your Data for Processing by the Services.
14 Fees and Payment
You shall pay Company the fees set forth in any Sales Order and in accordance with this Section 14 ("Fees").
All Fees and other amounts payable by you are exclusive of taxes and similar assessments. Without limiting the foregoing, you are responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by you hereunder, other than any taxes imposed on Company's income.
You shall pay all Fees and Reimbursable Expenses within 30 days after the date of the invoice therefor. You shall make all payments in US dollars to the address or account as Company may specify in writing from time to time.
14.4 Late Payment
If you fail to make any payment when due then, in addition to all other remedies that may be available:(a) Company may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law;
(b) You shall reimburse Company for all costs incurred by Company in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees; and
(c) if such failure continues for 5 business days following written notice thereof, Company may suspend performance of the Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to you or any other Person by reason of such suspension, or terminate of the Services without penalty or further obligation as provided in Section 21.
14.5 No Deductions or Setoffs
All amounts payable to Company hereunder shall be paid by you to Company in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable Law).
14.6 Reimbursable Expenses
You shall reimburse Company for out-of-pocket expenses incurred by Company in connection with performing the Services ("Reimbursable Expenses").
15.1 Confidential Information
In connection with these Legal Terms each party (as the "Disclosing Party") may disclose or make available Confidential Information to the other party (as the "Receiving Party"). Subject to 15.2, "Confidential Information" means all information in any form or medium (whether oral, written, electronic, or other), including without limitation, information consisting of or relating to the Disclosing Party's technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligation, in all cases whether or not marked, designated, or otherwise identified as "confidential". Without limiting the foregoing: all Company Materials are the Confidential Information of Company.
Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information's being disclosed or made available to the Receiving Party in connection with the Services; (b) was or becomes generally known by the public other than by the Receiving Party's or any of its Representatives' noncompliance with these Legal Terms; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party's knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; (d) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information; or (e) is Resultant Data that the Receiving Party has no way of tracing or relating back to the Disclosing Party.
15.3 Protection of Confidential Information
As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:(a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with these Legal Terms;
(b) except as may be permitted by and subject to its compliance with 15.4, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party's exercise of its rights or performance of its obligations under and in accordance with these Legal Terms; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party's obligations under this 15.3; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 15;
(c) safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care;
(d) promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and take all reasonable steps to cooperate with Disclosing Party to prevent further unauthorized use or disclosure; and
(e) ensure its Representatives' compliance with, and be responsible and liable for any of its Representatives' non-compliance with, the terms of this Section 15.
(f) Notwithstanding any other provisions hereunder, the Receiving Party's obligations under this Section 15 with respect to any Confidential Information that constitutes a trade secret under any applicable Law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under one or more such applicable Laws other than as a result of any act or omission of the Receiving Party or any of its Representatives.
15.4 Compelled Disclosures
If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 15.3; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party's sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 15.4, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose.
16 Intellectual Property Rights
16.1 Company Materials
All right, title, and interest in and to the Company Materials and Resultant Data, including all Intellectual Property Rights therein, are and will remain with Company and, with respect to Third-Party Materials, the applicable third-party providers own all right, title, and interest, including all Intellectual Property Rights, in and to the Third-Party Materials. You have no right, license, or authorization with respect to any of the Company Materials except as expressly set forth in Section 3 or the applicable third-party license, in each case subject to Section 4. All other rights in and to the Company Materials are expressly reserved by Company. In furtherance of the foregoing, you hereby unconditionally and irrevocably grant to Company an assignment of all right, title, and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.
16.2 Your Data
As between you and Company, you are and will remain the sole and exclusive owner of all right, title, and interest in and to all of Your Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 16.3.
16.3 Consent to Use Your Data
You hereby irrevocably grant all such rights and permissions in or relating to Your Data as are necessary or useful to Company to provide the Service, enforce these Legal Terms, exercise Company's rights, and perform Company's obligations hereunder.
17 Representations and Warranties
Each party represents and warrants that (a) it has full power and authority to enter into these Legal Terms, and (b) it will comply with all laws and regulations applicable to its provision, receipt, or use of the Services, as applicable.
17.1 Additional Company Representations, Warranties, and Covenants
Company represents, warrants, and covenants to you that Company will perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations hereunder.
17.2 Your Additional Representations, Warranties, and Covenants(a) You represent, warrant, and covenant to Company that you own or otherwise have and will have the necessary rights and consents in and relating to Your Data so that, as received by Company and Processed in accordance with these Legal Terms, it does not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights of any third party or violate any applicable Law.
(b) You represent, warrant, and covenant to Company that you shall only use the Services, Company Materials, or Resultant Data so that such use does not and will not infringe adversely effect relevant market integration efficiencies, reduce competitive functioning of any market you operate in, or violate any applicable Law.
EXCEPT AS EXPRESSLY PROVIDED FOR IN HEREIN, COMPANY DOES NOT MAKE AND EXPRESSLY DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW (A) ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, TITLE, NONINFRINGEMENT, OR ERROR-FREE OR UNINTERRUPTED USE OF THE SERVICES AND (B) ANY REPRESENTATIONS ABOUT CONTENT OR INFORMATION ACCESSIBLE THROUGH THE SERVICES.
18.1 Company Indemnification
Company shall indemnify, defend, and hold harmless you, your Affiliates, and each of your and their respective officers, directors, employees, agents, successors, and assigns (each, a "Customer Indemnitee") from and against any and all Losses incurred by a Customer Indemnitee resulting from any Action by a third party (other than an Affiliate of a Customer Indemnitee) that your use of the Services (excluding Your Data and Third-Party Materials) in accordance with these Legal Terms (including the Specifications) infringes or misappropriates such third party's US patents, copyrights, or trade secrets. The foregoing obligation does not apply to the extent that the alleged infringement arises from:(a) Third-Party Materials or Your Data;
(b) access to or use of the Company Materials in combination with any hardware, system, software, network, or other materials or service not provided by Company or specified for your use in the Documentation, unless otherwise expressly permitted by Company in writing;
(c) modification of the Company Materials other than: (i) by or on behalf of Company; or (ii) with Company's written approval in accordance with Company's written specification;
(d) failure to timely implement any modifications, upgrades, replacements, or enhancements made available to you by or on behalf of Company; or
(e) act, omission, or other matter described in Sections 18.2(a), 18.2(b), 18.2(c), or 18.2(d), whether or not the same results in any Action against or Losses by any Company Indemnitee.
18.2 Your Indemnification
You shall indemnify, defend, and hold harmless Company and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, a "Company Indemnitee") from and against any and all Losses incurred by such Company Indemnitee resulting from any Action by a third party (other than an Affiliate of a Company Indemnitee) that arise out of or result from, or are alleged to arise out of or result from:(a) Your Data, including any Processing of Your Data by or on behalf of Company in accordance with these Legal Terms;
(b) any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of you, including Company's compliance with any specifications or directions provided by or on behalf of you to the extent prepared without any contribution by Company;
(c) allegation of facts that, if true, would constitute your breach of any of your representations, warranties, covenants, or obligations under these Legal Terms; or
(d) negligence or more culpable act or omission (including recklessness or willful misconduct) by you, or any Person on behalf of you, in connection with these Legal Terms.
18.3 Indemnification Procedure
Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to Section 18.1 or Section 18.2, as the case may be. The party seeking indemnification (the "Indemnitee") shall cooperate with the other party (the "Indemnitor") at the Indemnitor's sole cost and expense. The Indemnitor shall promptly assume control of the defense and shall employ counsel to handle and defend the same, at the Indemnitor's sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor shall not settle any Action on any terms or in any manner that adversely affects the rights of any Indemnitee without the Indemnitee's prior written consent, which shall not be unreasonably withheld or delayed. If the Indemnitor fails or refuses to assume control of the defense of such Action, the Indemnitee shall have the right, but no obligation, to defend against such Action, including settling such Action after giving notice to the Indemnitor, in each case in such manner and on such terms as the Indemnitee may deem appropriate. The Indemnitee's failure to perform any obligations under this Section 18.3 will not relieve the Indemnitor of its obligations under this Section 18, except to the extent that the Indemnitor can demonstrate that it has been prejudiced as a result of such failure.
If any of the Services or Company Materials are, or in Company's opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if your use of the Services or Company Materials is enjoined or threatened to be enjoined, Company may, at its option and sole cost and expense:(a) obtain the right for you to continue to use the Services and Company Materials as materially contemplated hereunder;
(b) modify or replace the Services and Company Materials, in whole or in part, to seek to make the Services and Company Materials (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Services and Company Materials, as applicable, hereunder; or
(c) by written notice to you, terminate your use of the Services with respect to all or part of the Services and Company Materials, and require you to immediately cease any use of the Services and Company Materials or any specified part or feature thereof, and subject to your compliance with your post-termination obligations set forth in Section 20, you will be entitled to a prorated refund of Fees paid for which Services were not received.
18.5 Sole Remedy
THIS SECTION 18 SETS FORTH YOUR SOLE REMEDIES AND COMPANY'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES AND COMPANY MATERIALS OR ANY SUBJECT MATTER OF THESE LEGAL TERMS INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
19 Limitations of Liability
19.1 EXCLUSION OF DAMAGES
IN NO EVENT WILL COMPANY OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THESE LEGAL TERMS OR THEIR SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICES; (c) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (d) COST OF REPLACEMENT GOODS OR SERVICES; (e) LOSS OF GOODWILL OR REPUTATION; OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
19.2 CAP ON MONETARY LIABILITY
EXCEPT AS OTHERWISE PROVIDED IN SECTION 19.3, IN NO EVENT WILL THE AGGREGATE LIABILITY OF COMPANY ARISING OUT OF OR RELATED TO THESE LEGAL TERMS AND/OR THE PERFORMANCE OF THE SERVICES, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNTS PAID TO COMPANY FOR THE SERVICES IN THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
The exclusions and limitations in Sections 19.1 and 19.2 do not apply to Company's obligations under Section 18 or liability for a Party’s willful and intentional misconduct or fraud.
In addition to any other express termination right set forth elsewhere in these Legal Terms:(a) Company may terminate access to the Services, effective on written notice to you, if you: (i) fail to pay any amount when due hereunder, and such failure continues more than 5 business days after Company's delivery of written notice thereof; or (ii) breach any of your obligations hereunder;
(b) either party may terminate access to or use of Services, effective on written notice to the other party, if the other party breaches these Legal Terms, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured 30 days after the non-breaching party provides the breaching party with written notice of such breach; and
(c) either party may terminate access to or use of Services, effective immediately upon written notice to the other party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
20.2 Effect of Termination or Expiration
If access to or use of Services is terminated, then (a) all rights and access to the Services will terminate (including access to Your Data, if applicable), unless otherwise described herein, and (b) all Fees owed by you to Company are immediately due upon your receipt of the final invoice.
20.3 Surviving Terms
The provisions set forth in the following sections, and any other right or obligation of the parties in these Legal Terms that, by their nature, should survive termination or expiration of the Services, will survive any expiration or termination of the Services: Section 10 (Use Restrictions), Section 14 (Fees and Payment), Section 15 (Confidentiality), Section 16 (Intellectual Property Rights), Section 17.3 (Disclaimer), Section 18 (Indemnification), Section 19 (Limitation of Liability), Section 20.2 (Effect of Termination or Expiration), this Section 20.3, and Section 21 (Miscellaneous).
21.1 Further Assurances
On a party's reasonable request, the other party shall, at the requesting party's sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, as may be necessary to give full effect to these Legal Terms.
21.2 Relationship of the Parties
The relationship between the parties is that of independent contractors. Nothing contained in these Legal Terms shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
21.3 Public Announcements
Neither party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to these Legal Terms or, unless expressly permitted hereunder, otherwise use the other party's trademarks, service marks, trade names, logos, domain names, or other indicia of source, association, or sponsorship, in each case, without the prior written consent of the other party, which consent shall not be unreasonably withheld, provided, however, that Company may, without your consent, include your name and other indicia in its lists of Company's current or former customers of Company in promotional and marketing materials.
Except as otherwise expressly set forth hereunder, any notice, request, consent, claim, demand, waiver, or other communications under these Legal Terms have legal effect only if in writing and addressed to a party to such address or such Person that such party may designate from time to time in accordance with this Section 21.4.
Notices sent in accordance with this Section 21.4 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by facsimile or email, (with confirmation of transmission), if sent during the addressee's normal business hours, and on the next business day, if sent after the addressee's normal business hours; and (d) on the 3rd day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
For purposes of these Legal Terms: (a) the words "include," "includes," and "including" are deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive; (c) the words "herein," "hereof," "hereby," "hereto," and "hereunder" refer to these Legal Terms as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in these Legal Terms: (x) to sections, exhibits, schedules, attachments, and appendices mean the sections of, and exhibits, schedules, attachments, and appendices attached to, these Legal Terms; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The parties intend these Legal Terms to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments, and appendices referred to herein are an integral part of these Legal Terms to the same extent as if they were set forth verbatim herein.
The headings in these Legal Terms are for reference only and do not affect the interpretation of these Legal Terms.
21.7 Entire Agreement
These Legal Terms, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of these Legal Terms and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of these Legal Terms, the related exhibits, schedules, attachments, and appendices (other than an exception expressly set forth as such therein) and any other documents incorporated herein by reference, the following order of precedence governs: (a) first, these Legal Terms, excluding its exhibits, schedules, attachments, and appendices; (b) second, the exhibits, schedules, attachments, and appendices to these Legal Terms; and (c) third, any other documents incorporated herein by reference.
You shall not assign or otherwise transfer any of your rights, or delegate or otherwise transfer any of your obligations or performance under these Legal Terms, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Company's written consent, which consent shall not be unreasonably withheld, conditioned, or delayed. Without limiting the generality of the preceding sentence, any merger, consolidation, or reorganization involving you will be deemed to be a transfer of rights, obligations, or performance hereunder for which Company's written consent is required. No assignment, delegation, or transfer will relieve you of any of its obligations or performance hereunder. Any purported assignment, delegation, or transfer in violation of this Section 21.8 is void. These Legal Terms are binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
21.9 Force Majeure
(a) No Breach or Default. In no event will Company be liable or responsible to you, or be deemed to have defaulted under or breached these Legal Terms, for any failure or delay in fulfilling or performing any term hereunder, when and to the extent such failure or delay is caused by any circumstances beyond Company's reasonable control (a "Force Majeure Event"), including (i) acts of God; (ii) flood, fire, earthquake, or explosion; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order, law, or actions; (v) embargoes or blockades in effect on or after the date of your acceptance of these Legal Terms; (vi) national or regional emergency as formally declared by government leadership (vii) strikes, labor stoppages or slowdowns, or other industrial disturbances; and (viii) shortage of adequate power or transportation facilities. Either party may terminate use of or access to the Services if a Force Majeure Event affecting the other party continues substantially uninterrupted for a period of 30 days or more.
(b) Affected Party Obligations. In the event of any failure or delay caused by a Force Majeure Event, Company shall give you prompt written notice stating the period of time the occurrence is expected to continue and use diligent efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
21.10 No Third-Party Beneficiaries
These Legal Terms are for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Legal Terms.
If any term or provision of these Legal Terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision hereunder or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify these Legal Terms so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
21.13 Governing Law; Submission to Jurisdiction
These Legal Terms are governed by and construed in accordance with the internal laws of the State of Georgia without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Georgia. Any legal suit, action, or proceeding arising out of or related to these Legal Terms or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Georgia in each case located in the city of Atlanta and County of Fulton, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party's address provided by such party shall be effective service of process for any suit, action, or other proceeding brought in any such court.
21.14 Waiver of Jury Trial
Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to these Legal Terms or the transactions contemplated hereby.
21.15 Equitable Relief
Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 15 (Confidentiality) or, in the case of you, Section 10 (Use Restrictions), Section 11.4 (Corrective Action or Notice), or Section 13.3 (Your Control and Responsibility), would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, the other party will be entitled to seek equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
21.16 Attorneys' Fees
In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party against the other party arising out of these Legal Terms, the prevailing party is entitled to recover its reasonable attorneys' fees and court costs from the non-prevailing party.