As of May 23, 2018

These Terms of Access apply to the Catalytic software-as-a-service application, as updated from time to time, (the “Service”) operated by Catalytic, Inc., with its principal place of business at 23 W. Jefferson, 2nd Floor, Naperville, IL 60540 (“Catalytic”) and, upon acceptance, enable you (“Client”) to access the Service effective as of the date accepted (the “Effective Date”).

1. Definitions.

1. “Affiliate” of a party means any legal entity in which a party directly or indirectly holds more than fifty percent (50%) of the shares or voting rights or has the direct or indirect power to direct the management and policies of an entity, or controls or is under common control with a legal entity which holds the foregoing ownership or management power.  

2. “Catalytic Materials” mean any documents or materials related to the Service provided or produced by or with Catalytic, and any improvements, designs, contributions or derivative works thereto.

3. “Client Data” means any content, materials, data and information that Client’s Users enter into the Service.

4. “Confidential Information" means, with respect to Client, Client Data, marketing and business plans, and/or financial information, and with respect to Catalytic: (a) the Service, the Catalytic Materials, and any improvements of the Service; (b) computer software (both object and source codes); (c) techniques, concepts, methods, processes, designs, and program interfaces embodied in or relating to the Service and Catalytic Materials; and (d) all system security and system architecture design relating to the Service. In addition to the foregoing, Confidential Information of either Catalytic or Client (the party disclosing information being the “Disclosing Party”) includes information: (a) the Disclosing Party protects against unrestricted disclosure to others designated as confidential at the time of disclosure; and (b) information that should reasonably be understood to be confidential given the nature of the information and the circumstances surrounding its disclosure.

5. “Documentation” means the usage guides and policies relating to the Service as updated from time to time and generally made available by Catalytic to users of the Service.  

6. “Restricted Information” means (a) personal credit card numbers, (b) medical records or health care information associated with individuals; (c) information regulated under the International Traffic in Arms Regulations; and (d) technical data restricted under applicable export law.

7. “Users” means Client’s and its Affiliates’ employees, agents, contractors, consultants, suppliers or other individuals granted access to the Service by or through Client.

2. Access Rights and Restrictions; Support.

1. Subject to Client’s compliance with this Agreement, Catalytic grants to Client a non-exclusive, non-transferable right during the Term to permit its Users to remotely access and use the then-current version of the Service and Catalytic Materials solely in connection with Client’s and its Affiliates’ own lawful internal business purposes. Except for the limited rights expressly granted herein, Catalytic reserves all rights or interests not expressly granted to Client in the Agreement.

2. Client shall not, and shall ensure that its Users do not: (a) sell, resell, license, sublicense, distribute, make available, rent or lease or otherwise make the Service available to third parties (other than Users who are using the Service in accordance with Client’s permitted use) or in a service bureau or outsourcing offering; (b) copy, translate, disassemble, decompile, reverse-engineer or otherwise modify any parts of the Service; (c) store or transmit any content, data or information that is infringing, unlawful, abusive, harassing, tortious, defamatory, vulgar, libelous or invasive of another’s privacy right or right of publicity; (d) attempt to gain unauthorized access to any Service or its related systems or networks; (e) interfere with or disrupt the software and systems used to host or connected with the Service; (f) interfere with or disrupt the integrity or performance of the Service or third-party data contained therein; (g) access the Service for the purpose of building a competitive product or service or copying its features or user interface; (h) use the Service in a manner that violates any applicable local, state, national, international or foreign law or regulation; (i) enter Restricted Information into the Service; or (j) export the Service or Catalytic Materials to countries, persons or entities prohibited by United States export laws.

3. Client shall be responsible for the acts and omissions of its Users as if they were the acts and omissions of Client.  Client will be responsible for the accuracy, quality and legality of Client Data.

4. Catalytic will use commercially reasonable efforts to make the Service available 24 hours per day, 7 days per week except for planned downtime and any unavailability caused by circumstances beyond Catalytic’s reasonable control, including, for example, acts of government or Mother Nature, flood, fire, civil unrest, act of terror or strike or Internet service provider failure or delay.

5. Catalytic may modify the Services in its sole discretion at any time provided such modifications do not materially degrade the functionality of the Services or Client’s use thereof.  Catalytic will inform Client by e-mail, support portal, release notes, Documentation or the Service.  Modifications may include new features and functionality.  If a modification is not solely an enhancement and materially reduces the Service, Client may terminate by providing written notice within thirty (30) days of such modification in which event Client will be entitled to any pre-paid fees on a prorated basis.

6. The Services permit integration with third-party products; to the extent Client implements and/or utilizes any such integration, Client hereby consents to the transfer of Client Data via the established integration.

7. Catalytic agrees to: (i) support and assist Client in the use of the Services, (ii) provide all maintenance services necessary to keep the Services in good working order and free from defects in material and workmanship, (iii) provide all maintenance services necessary to keep the Services in conformance with the warranties set forth herein, (iv) provide, at no additional cost, all major and minor enhancements, versions, releases, updates, upgrades and other modifications to the Services; and, (v) unless otherwise set forth in a PS or SOW, provide reasonably necessary telephone or written consultation in connection with the use and operation of the Services between the hours of 9:00 a.m. and 5:00 p.m., Central Standard Time (Daylight Savings observed), Monday through Friday excluding holidays (the "Support Hours").

3. Payment of Fees.

1. Client shall be solely responsible for payment of all taxes, assessments and other fees imposed, assessed or collected by or under the authority of any governmental body (collectively, “Taxes”) arising from Catalytic’s provision of the Service, except taxes assessed upon Catalytic’s net income.  Taxes will be assessed based on Client’s bill-to address.

2. Catalytic shall render invoices to Client in advance.  Client shall pay all invoiced amounts to Catalytic in U.S. dollars within thirty (30) days of the invoice date.  Should any invoiced amount not subject to a reasonable, good faith dispute remain unpaid for more than sixty (60) days, Clients access to the Service may be suspended.  Payment obligations are non-cancelable and, except as expressly provided otherwise in this Agreement, fees paid are non-refundable.

4. Confidentiality.

1. With respect to the Confidential Information of the other, each party: (a) shall use reasonable care, which shall not be less than the care it takes to protect its own similar proprietary and confidential information and in no event be less than a reasonable standard of care, to keep all Confidential Information strictly confidential; and (b) shall not disclose any Confidential Information of the other to any person other than individuals whose access is necessary to enable it to exercise its rights and/or perform its obligations hereunder and who are under obligations of confidentiality substantially similar to those set forth herein. Confidential Information of either party disclosed prior to execution of the Agreement shall be subject to the protections afforded hereunder. If the receiving party is compelled by law or legal process to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prompt prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's expense, if the Disclosing Party wishes to contest the disclosure.

2. The above restrictions on the use or disclosure of the Confidential Information shall not apply to any Confidential Information that: (a) is independently developed by the receiving party without reference to the Disclosing Party’s Confidential Information, or is lawfully received free of restriction from a third party having the right to furnish such Confidential Information; (b) has become generally available to the public without breach of the Agreement by the receiving party; (c) at the time of disclosure, was previously known to the receiving party free of restriction; or (d) the Disclosing Party agrees in writing is free of such restrictions.

3. Each Party shall retain all ownership and intellectual property rights, title, and interest in and to their Confidential Information. Any reproduction of any Confidential Information of the other party shall remain the property of the Disclosing Party and shall contain all confidential or proprietary notices or legends appearing on the original. Each party shall notify the other promptly upon discovery of any unauthorized disclosure or use of the other’s Confidential Information, and will cooperate in every reasonable way to help the other regain possession of its Confidential Information and/or to prevent further unauthorized use or disclosure. In the event of the threatened or actual breach of this Agreement, a party may have no adequate remedy at law and shall be entitled to, in addition to any other legal remedies available, (a) all equitable remedies, including immediate injunctive relief (without bond and without the necessity of showing actual monetary damages) and (b) reasonable attorney’s fees incurred in enforcing its rights hereunder.

4. For the avoidance of doubt, System Data (as defined below) constitutes Catalytic Confidential Information.  “System Data” means anonymized, aggregated data compiled by Catalytic and/or the Services relating to use of the Services, including use by Client, that is not attributable to Client or any user, customer, or company, and is used for benchmarking and other metrics within the Services.

5. Catalytic will maintain administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Client Data, as described in the Documentation.  The safeguards will include measures for preventing access, use, modification or disclosure of Client Data.  Catalytic and Client will implement technical and organizational measures necessary to secure personal data processed in the Service to meet their respective obligations under applicable data protection laws and to reasonably protect Client Data against misuse

5. Warranty and Disclaimer.

Catalytic represents and warrants that the Services will materially conform to the Documentation and will be performed in a competent manner with the skill and care reasonably expected from a supplier of similar services.  In the event of breach of the foregoing warranty, Catalytic will cure the non-conformity within sixty (60) days and, if unable to do so to the reasonable satisfaction of Client, Client shall have the right to terminate this Agreement and receive a prorated refund of any pre-paid fees.  Each party represents and warrants that it shall comply with all laws applicable to it and to take commercially reasonable efforts to ensure that the Confidential Information provided to the other shall be free of any virus, Trojan Horse, cancel bot, timebombs or other devices developed to disable or to erase, damage or corrupt software, hardware or data.  Except as otherwise provided in this Agreement, Client acknowledges and agrees that the Service including (without limitation) all updates and enhancements are provided “AS IS,” and “AS AVAILABLE” without warranty of any kind, and ANY WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING ANY MATTER, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, SUITABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, OR NONINFRINGEMENT ARE DISCLAIMED. WITHOUT LIMITING THE FOREGOING, CATALYTIC DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, FREE OF ERRORS, DEFECTS OR WITHOUT DELAY, OR THAT ERRORS OR DEFECTS ARE CAPABLE OF BEING CORRECTED.

6. Third Party Claims.

Each party (“Defending Party”) will defend the other party (“Defended Party”) against any third party claim or legal action (“Claim”), to the extent such Claim alleges that (a) the Confidential Information provided by the Defending Party infringes any U.S. patent, copyright or trade secret, or other non-patent intellectual property right of such third party, or (b) the Defending Party has failed to comply with the requirements of applicable data protection laws. The Defending Party will pay damages finally awarded against the Defended Party (or the amount of any settlement the Defending Party enters into) with respect to such Claims, and will pay reasonable attorney’s fees in connection with such defense. Neither party shall have any such obligations for its Confidential Information hereunder where the Claim directly or indirectly arises from the other party’s misuse or unauthorized modification of such Confidential Information. This obligation is contingent on the Defended Party providing the Defending Party: (i) written notice within thirty (30) days of receiving a Claim; (ii) all assistance (at the expense of the Defending Party) and necessary information within its control for the Defending Party to conduct a defense; and (iii) with sole control of the defense and settlement of the Claim. If the use of the Service or Catalytic Materials infringes, or in Catalytic’s determination, is likely to infringe, a third party proprietary right, Catalytic may, in its sole discretion and at its option and expense (a) obtain for Client the right to use the allegedly infringing item(s), (b) substitute or modify such item to be non-infringing and have equivalent functionality, or if the foregoing options are not commercially reasonable (c) terminate the Agreement. THE FOREGOING STATES THE DEFENDING PARTY’S ENTIRE LIABILITY AND THE DEFENDED PARTY’S SOLE AND EXCLUSIVE REMEDY FOR INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT OR ALLEGATIONS THEREOF

7. Limitation of Liability.

EXCLUDING BREACH OF CONFIDENTIALITY AND FAILURE TO COMPLY WITH APPLICABLE LAWS, IN NO EVENT WILL THE PARTIES, THEIR AFFILIATES, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY (WHETHER BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE), ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE IN CONNECTION WITH CLIENT’S USE OR ACCESS, OR INABILITY TO USE OR ACCESS, THE SERVICE OR CATALYTIC MATERIALS, INCLUDING FOR ANY (A) DIRECT DAMAGES IN EXCESS OF AN AMOUNT EQUAL TO FEES PAID BY CLIENT IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM; OR (B) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OR INACCURACY OF DATA, WHETHER OR NOT REASONABLY FORESEEABLE. THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

8. Termination.

1. The Agreement shall terminate immediately upon the earlier of: (a) the existence of a claim which precludes continued access to the Service or (b) upon thirty (30) days written notice to the other party of such other party’s material breach of any provision of the Agreement, unless the breaching party has cured such breach during such thirty (30) day period.

2. Notwithstanding Catalytic’s right to terminate, Catalytic may deactivate Client’s user name(s) and password(s) and/or temporarily suspend access to the Service or a portion thereof: (i) if and to the extent Catalytic reasonably determines and can substantiate that the continued use of the Service may result in material harm to the Service (including the security of the systems used to provide the Service), other customers or the rights of third parties, upon prior written notice to Client as the circumstances permit; or (ii) if fees owed to Catalytic for the Service are more than sixty (60) days past due. Catalytic will promptly notify Client of any suspension, limit such suspension in time and scope as reasonable under the circumstances and reinstate the Service as soon as reasonably practical.

3. Upon the effective date of termination, Client’s access to the Service will be terminated.

4. Any provisions which by their nature should survive, shall survive the expiration, termination or rescission thereof and continue in full force and effect after this Agreement is terminated.

9. Miscellaneous.

1. This Agreement constitutes the complete and exclusive statement of the agreement between Catalytic and Client in connection with the parties’ business relationship related to the subject matter hereof, and all previous representations, discussions, and writings (including any confidentiality agreements) are merged in, and superseded by the Agreement and the parties disclaim any reliance on any such representations, discussions and writings. Only a writing signed by both parties may modify the Agreement.

2. No failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver hereof; all waivers being required to be in writing signed by the waiving party. If either party should waive any breach of any provision of the Agreement, it shall not thereby be deemed to have waived any preceding or succeeding breach of the same or any other provision. 9.3. Client may not, without Catalytic’s prior written consent, assign, delegate, pledge, subcontract, or otherwise transfer the Agreement, or any of its rights or obligations under the Agreement to any third party, whether voluntarily or by operation of law, including by way of sale of assets, merger or consolidation. Catalytic may assign the Agreement to any of its Affiliates or to a successor as a result of merger, consolidation, acquisition or sale of all or substantially all of Catalytic’s assets. Catalytic may in its sole discretion sub-contract parts of the Service to third parties provided that Catalytic shall be liable for any breach of the terms of this Agreement attributable to any such third party.

3. The parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties is created hereby. There are no third party beneficiaries to the Agreement.

4. Client acknowledges and agrees that Catalytic is not in the business of providing legal advice, and that no content available within the Service or provided by Catalytic in connection therewith should be misconstrued as legal advice.

5. Client is solely responsible for determining the suitability of the Service for its business and complying with any regulations, laws, or conventions applicable to Client’s use of the Service. Client ensures that no legal requirements of Client prevent Catalytic from fulfilling its contractual obligations under the Agreement in compliance with applicable law, including, without limitation, to the extent required, ensuring that all concerned individuals have previously declared consent to a possible processing of personal information. Client shall be responsible for complying with all applicable governmental regulations of the country where Client is registered, and any foreign countries with respect to the use of the Service and Catalytic Materials or other materials by Clients and its Users.

6. Catalytic shall have the right to use Client’s name and logo in communications with third parties, provided that such use is revocable by Client at Client’s discretion.

7. The Agreement and any claims arising out of or relating to the Agreement and its subject matter shall be governed by and construed under the laws of Illinois, without reference to its conflicts of law principles. All disputes hereunder shall be subject to the exclusive jurisdiction of the state or federal courts located in Chicago, Illinois (“Selected Venue”) and each party hereby irrevocably and unconditionally consents to personal jurisdiction of the Selected Venue. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the Agreement.

8. All notices pursuant to the Agreement shall be in writing and shall be deemed duly given when delivered (certified or registered mail or by an overnight courier service with delivery receipt) to the respective offices of Client as set forth in the purchasing documentation or to Catalytic at the address set forth in the introductory paragraph of this Agreement directed to the general counsel.