CatalystXL SaaS Subscription and Services Agreement
Updated: October 27, 2022
This CatalystXL SaaS Subscription and Services Agreement (“Agreement”) is between the entity executing an Order Form and/or SOW (“Customer”) and CatalystXL, Inc. (“CatalystXL”). CatalystXL provides a Digital Experience Platform via a Software-as-a-Service model (“SaaS Product”). This Agreement establishes terms and conditions for the purchase and provision of subscriptions to the SaaS Product (“Subscription(s)”) and related support and professional services (“Services”) to Customer.
- Orders and Statements of Work
This Agreement does not itself obligate the parties to purchase or provide Subscriptions or Services. Such obligations will be documented in: (a) an order form that describes the Subscription, including license metrics, Subscription term, and fees (each, an “Order”); or (b) a statement of work that describes the Services and deliverables (each, a “Deliverable”) to be provided by CatalystXL to Customer (each, a “SOW”). The provisions of the various agreement documents shall, to the extent possible, be interpreted so as to supplement each other and avoid any conflict between them. However, in the event of a conflict or inconsistency between the Agreement documents, such conflict or inconsistency shall be resolved in accordance with the following order of precedence: (1) any amendment to any Order or SOW; (2) an applicable Order or SOW; and (3) this Agreement.
- Provision of the SaaS Product and Services
a. Generally. CatalystXL will make the SaaS Product available to Customer through the web browsers and mobile applications specified on the Order and will maintain the hardware and software necessary to do so. CatalystXL may alter the features of the SaaS Product at any time, but will not materially diminish the features, functionality, or availability of the SaaS Product during a Subscription. Customer is responsible for meeting the then-current hardware, operating system, browser and other technical requirements necessary to properly use and access the SaaS Product. CatalystXL shall not be responsible for any unauthorized access to, or alteration of, Customer’s transmissions, data, or Customer Data (defined in Section 4(a)), or any material, information or data sent or received, regardless of whether the data is actually received by CatalystXL, or any transactions entered into through the SaaS Product or failure to abide by this Agreement. CatalystXL shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data, or for any actions or omissions which CatalystXL takes in reliance upon Customer’s Customer Data.
b. Support Services. CatalystXL will provide patches, fixes, error corrections, and minor enhancements and modifications to the SaaS Product pursuant to an Order or SOW, when and if generally available. CatalystXL may offer new and additional SaaS Product features, functionality, or capabilities subject to an additional fee and a separate Order.
c. Customer Obligations. Customer will (a) be exclusively responsible for all of its users’ compliance with this Agreement; (b) be responsible for the accuracy, quality and legality of Customer Data and the means by which Customer acquired Customer Data; (c) use commercially reasonable efforts to prevent unauthorized access to the SaaS Product or use of Services, and notify CatalystXL promptly of any unauthorized access or use; (d) use the SaaS Product and/or Services only in accordance with the documentation and all applicable laws and government regulations; (e) be solely responsible for usage of contact information (e.g., names, phone and facsimile numbers, e-mail addresses and physical addresses) in compliance with applicable laws and government regulations; and (f) be solely responsible for ensuring that processing of personal data by or using the SaaS Product complies with applicable law.
d. Project Managers. Each party will dedicate a project manager to interface with the other party under each SOW. Each project manager will have appropriate decision making power related to all aspects of that party’s performance under the applicable SOW. Each party should direct all SOW-related communications to the other party through that party’s project manager. Each Customer project manager shall be responsible for ensuring appropriate resources are provided to CatalystXL personnel to facilitate delivery of the Deliverables and/or Services.
e. Additional Customer Obligations and Responsibilities. Customer shall: (i) provide CatalystXL with all necessary access to Customer’s facilities, personnel, computers, materials and other equipment; (ii) obtain any consent required from a third party to permit CatalystXL to access and/or use that third party’s hardware, software or other proprietary material in Customer’s possession and control in order for CatalystXL to perform its obligations under this Agreement and each SOW; (iii) promptly respond to all communications initiated by CatalystXL, whether received in writing, by email or by phone, in a timely manner; and (iv) Customer warrants that it shall timely, completely and accurately perform all of its obligations and responsibilities under this Agreement and all SOWs, including, but not limited to, the timely rendering of all required decisions and approvals. Should Customer fail to comply with this warranty, CatalystXL shall receive an appropriate extension of time to provide the Services and/or Deliverables under this Agreement or shall be relieved from performance of the Services and/or delivery of the Deliverables, in CatalystXL’s sole discretion, if such Services and/or Deliverables were time sensitive. Further, in the event of Customer’s failure to comply with any warranty under this Agreement, CatalystXL shall not be held responsible or liable for any resulting delay in providing Deliverables under this Agreement, and Customer shall promptly reimburse CatalystXL for all additional costs and expenses incurred by CatalystXL as a direct result of such failure by Customer.
f. Acceptance. Unless otherwise provided in an SOW, the Services and/or Deliverables are deemed accepted fourteen (14) calendar days after delivery or performance unless, within that time (the “Acceptance Period”), Customer provides written notice to CatalystXL that the Services rendered or Deliverables delivered were not in substantial conformance with agreed to specifications. If Customer provides such written notice to CatalystXL, CatalystXL will use commercially reasonable efforts to, at its sole option, repair, correct, re-perform or replace the Deliverable and/or Services within a reasonable time of its receipt of the notice.
- Use of the SaaS Product
- Usernames and Passwords. Customer will either be assigned usernames and passwords, or will be authorized to create usernames and passwords. Customer shall use SaaS industry standard practices to restrict the use of its usernames and passwords, provided that Customer shall remain fully liable and responsible for any activity under its usernames. If Customer believes its usernames and/or passwords have been compromised, Customer shall immediately notify CatalystXL.
- Suspension of Access and Use. CatalystXL may suspend Customer’s right to access or use any portion of or all of the SaaS Product immediately upon notice to Customer if CatalystXL reasonably determines Customer’s use of the SaaS Product: (i) poses a security risk to the SaaS Product or any third party; (ii) risks adversely impacting CatalystXL’s systems, the SaaS Product or the systems or content of any other CatalystXL customer; (iii) risks subjecting CatalystXL or its licensors to liability; or (iv) Customer is in breach of this Agreement or the Order. CatalystXL will use commercially reasonable efforts to restore Customer’s rights to use and access those portions of the SaaS Product that gave rise to the suspension promptly after Customer has resolved the problem giving rise to the suspension.
- Ownership and Use Rights
- Customer Data. Customer owns all data delivered to CatalystXL by Customer or collected by CatalystXL on behalf of Customer (“Customer Data”). Customer grants CatalystXL a perpetual, non-exclusive, worldwide, sublicensable, transferable license to the Customer Data for the purposes of: (i) providing the SaaS Product, Deliverables and Services to Customer; (ii) improving the SaaS Product; and (iii) developing and publishing broadly applicable benchmarks, but only when the Customer Data has been aggregated and/or de-identified such that the publication cannot be used to identify Customer. Customer represents and warrants that Customer Data does not infringe any copyright, trademark, trade secret, patent or other right of any third party. CatalystXL shall be entitled to rely on the accuracy, truthfulness, completeness and appropriateness of all Customer Data. Customer will defend CatalystXL against claims, causes of action, and investigations by third parties and will indemnify CatalystXL against any resulting judgments, fines, settlements, court costs, and reasonable attorneys’ fees for third party claims resulting from Customer’s breach of Sections 3 and 4 with respect to Customer Data delivered to, or collected by, CatalystXL on behalf of Customer.
- SaaS Product and Deliverables. Except as otherwise set forth in a SOW, CatalystXL, its affiliates, and its licensors own all rights, title, and interest in and to the SaaS Product and Deliverables, and all related technology and intellectual property right, including to all modifications, improvements, and derivative works created. Subject to the terms of this Agreement and pursuant to the applicable Order or SOW, CatalystXL grants Customer a limited, revocable, non-exclusive, nonsublicensable, non-transferrable license to access and use the SaaS Product or SOW solely in accordance with this Agreement during the applicable term for Customer’s internal business purposes. Except as provided in this Section 4(b) or as otherwise set forth in a SOW, Customer obtains no rights under this Agreement from CatalystXL or its licensors to the SaaS Product or Deliverables, including without limitation any related intellectual property rights. CatalystXL reserves all intellectual property rights not explicitly granted herein. All rights not expressly granted to Customer in this Agreement are reserved by CatalystXL, and Customer may not use the SaaS Product or Deliverables in any manner not expressly authorized by this Agreement. In the event the parties agree that Customer shall own a Deliverable in a SOW, Customer hereby grants to CatalystXL a perpetual, fully paid up, royalty-free, worldwide, irrevocable, non-exclusive license to use the Deliverable for its business purposes. CatalystXL shall have the right, but not obligation, to refuse to incorporate into the SaaS Product or to remove from the SaaS Product, at any time, without prior notice to Customer, any Customer Data that, in CatalystXL’s sole opinion, is defamatory, threatening, obscene, indecent, patently offensive, violative of the proprietary rights of a third party or otherwise tortious; provided, however, that such right will not relieve the Customer any of its indemnification obligations under this Agreement.
- Documentation. CatalystXL owns the SaaS Product documentation and all derivative works thereof (except for any Customer Confidential Information contained in documentation created specifically for Customer). CatalystXL grants Customer a non-exclusive, worldwide limited license to use, copy, and make derivative works of the SaaS Product documentation during the term of a Subscription.
- Trademarks. Customer grants CatalystXL a limited, non-exclusive license to mark Customer’s instance of the SaaS Product with Customer’s trademarks, when requested by Customer and subject to Customer approval for consistency with its branding guidelines.
- License Restrictions. Customer shall not use the SaaS Product in any manner or for any purpose other than as expressly permitted by this Agreement. Customer shall not, and shall not attempt to: (i) modify, alter, tamper with, repair, or otherwise create derivative works of any content included in the SaaS Product (except to the extent content included in the SaaS Product are provided to Customer under a separate license that expressly permits the creation of derivative works), (ii) reverse engineer, disassemble, or decompile the SaaS Product or apply any other process or procedure to derive the source code of any software included in the SaaS Product, (iii) access or use the SaaS Product in a way intended to avoid incurring fees or exceeding usage limits or quotas, (iv) resell or sublicense the SaaS Product; (v) distribute malware, viruses, or any other harmful code; or (vi) access, tamper with, or use non-public areas of CatalystXL’s systems, or break or circumvent CatalystXL’s authentication or security measures or otherwise test the vulnerability of CatalystXL’s systems or networks. Customer will not assert, nor will Customer authorize, assist, or encourage any third party to assert, any intellectual property infringement claim regarding any SaaS Product Customer has used. Customer will not misrepresent or embellish the relationship between CatalystXL and Customer (including by expressing or implying that CatalystXL supports, sponsors, endorses, or contributes to Customer or Customer’s business endeavors). Customer will not imply any relationship or affiliation between CatalystXL and Customer except as expressly permitted by this Agreement.
- Hosting. Customer acknowledges and agrees that CatalystXL may use a third party to host the SaaS Product. CatalystXL shall ensure that such third-party hosting provider maintains compliance with industry standards for information and data security. To the extent permitted by agreements with such third-party hosting provider, CatalystXL shall make available to Customer, upon Customer requests, copies of such certifications, audit reports, and/or summaries of the same, provided that Customer may be required to enter into a confidentiality agreement with such third party hosting provider. The SaaS Product is controlled and operated from facilities in the United States. CatalystXL makes no representations that the SaaS Product is appropriate or available for use in other locations. Those who access or use the SaaS Product from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including export and import regulations.
- Privacy and Data Security. During the term of this Agreement, CatalystXL will maintain reasonable administrative, physical, and technical safeguards designed for the protection, confidentiality, and integrity of the Customer Data. Except as otherwise set forth in this Agreement, CatalystXL will not use Customer Data except to provide the SaaS Product and Services, or to prevent or address service or technical problems, in accordance with this Agreement or as instructed by Customer. If CatalystXL detects or becomes aware of a breach of its obligations under this Section 4(g) resulting in unauthorized access to Customer Data, CatalystXL will promptly report such breach to Customer. CatalystXL will use commercially reasonable efforts to perform a root cause assessment and remedy such breach in a timely manner. Access to the SaaS Product is password-controlled. Customer is responsible for maintaining the security of user passwords and will instruct its users as to the importance of maintaining the confidentiality of passwords and/or user identifications. Further, Customer is solely responsible for determining whether or not to require its users to utilize two-factor authentication or any other multi-factor authentication method as may be available in order to enable an additional layer of security beyond CatalystXL’s default security settings. Customer is responsible for enforcing its own internal information security governance framework with respect to its users’ access to Customer’s account, including assigning roles and specifying access rights. Customer is further responsible for the identity management of its users and must ensure that only authorized users have access to the Customer’s account. To the extent required by applicable international, U.S., state and local laws, rules, regulations, or ordinances, including, without limitation, all applicable data privacy and security laws, rules, and regulations, (including without limitation the California Consumer Privacy Act (CCPA) and the General Data Protection Regulation (GDPR) to the extent applicable), in each case as may be amended from time to time, Customer shall enter into a data processing agreement on CatalystXL’s standard form therefore setting forth the terms applicable to the processing of Customer Data hereunder.
- Invoicing. Customer will pay the fees as set forth in the Order and/or SOW. Customer will pay CatalystXL all invoiced amounts within thirty (30) days of the date of the invoice unless indicated otherwise in an Order or SOW. Customer shall pay interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) on all late payments. Fees are non-cancelable and non-refundable once invoiced, except as explicitly stated in this Agreement.
- Taxes. Invoiced amounts are payable in full, without reduction for transaction taxes (which will be construed broadly, so as to include all amounts payable to a government entity as a result of the transaction or the provision of Services that it contemplates, such as value added taxes, consumption taxes, goods and services taxes, GST/HST, excise, sales, use or similar taxes, and withholding taxes, regardless of the entity imposing the tax or the party on whom the tax is imposed). Customer is required to pay all such transaction taxes, either directly or by increasing payments to CatalystXL to offset taxes that Customer is required to deduct from payments. If CatalystXL has a legal obligation to pay or collect taxes imposed on Customer, the appropriate amount will be invoiced to and paid by Customer, unless Customer provides CatalystXL with a valid tax exemption certificate.
- Term and Termination
The term of this Agreement is from the Effective Date through the date ninety (90) days after the last day of the last Order or SOW to expire. Either party may terminate this Agreement or an Order or SOW: (i) in the event the other party fails to cure any material breach of this Agreement or the relevant Order or SOW within thirty (30) days after receipt of written notice describing the material breach; or (ii) if the other party files or has filed against it any bankruptcy or similar proceeding or enters into any form of arrangement with its creditors that is not removed within sixty (60) days of filing. Upon termination of this Agreement or an Order: (a) CatalystXL will make the Customer Data available for secure download by Customer in a standard flat file format for at least thirty (30) days (“Data Transfer Period”); and (b) Customer will pay CatalystXL all outstanding fees. Following the Data Transfer Period, CatalystXL will delete all Customer Data, provided that CatalystXL may retain certain Customer Data as permitted pursuant to Section 4(a). Subject to the terms of this Agreement, all provisions of this Agreement relating to grant of perpetual licenses, ownership, limitations of liability, confidentiality and indemnification shall survive termination of this Agreement.
- Warranties and Disclaimer of Warranties
a. SaaS Product. CatalystXL warrants that the SaaS Product will perform substantially in accordance with any documentation provided with the SaaS Product during the Subscription term (“Solution Warranty”). Upon receipt of written notice of a Solution Warranty breach, CatalystXL will use commercially reasonable efforts to provide a correction. This is Customer’s sole and exclusive remedy for a breach of the Solution Warranty.
b. Services. CatalystXL warrants that all Services shall be carried out in a diligent, prompt, and professional manner by individuals with the necessary knowledge, skill and training to provide such Services.
c. Mutual Warranties. Each party represents and warrants to the other that: (a) it has full power and authority to enter in and perform this Agreement; (b) the execution and delivery of this Agreement has been duly authorized; (c) it will comply with all laws, rules, regulations and ordinances that are applicable to that party in its performance of its obligations under this Agreement; and (d) its performance hereunder does not breach any other agreement to which it is bound.
d. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 7, THE SAAS PRODUCT, SERVICES AND DELIVERABLES ARE PROVIDED “AS IS.” EXCEPT TO THE EXTENT PROHIBITED BY LAW, CATALYSTXL, ITS AFFILIATES AND ITS LICENSORS MAKE NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, REGARDING THE SAAS PRODUCT, SERVICES OR DELIVERABLES AND DISCLAIM ALL OTHER WARRANTIES, INCLUDING ANY IMPLIED OR EXPRESS WARRANTIES (A) OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND QUIET ENJOYMENT, (B) ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE, (C) THAT THE SAAS PRODUCT WILL BE UNINTERRUPTED, ERROR FREE, OR FREE OF HARMFUL COMPONENTS, AND (D) THAT ANY CONTENT, INCLUDING CUSTOMER CONTENT OR THIRD-PARTY CONTENT, WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED.
CatalystXL or its designee may inspect Customer’s instance of the SaaS Product to verify Customer’s compliance with this Agreement. Customer agrees to respond promptly to requests for information, documents and/or records, and reasonably cooperate in connection with any such verification. If CatalystXL notifies Customer of any noncompliance or underpayment, then Customer will resolve the non-compliance and/or underpayment within thirty (30) days from the date of notice.
This Section supersedes and replaces any non-disclosure or confidentiality agreement entered into by the parties prior to the Effective Date. “Confidential Information” means all information provided by a disclosing party to a receiving party that a reasonable party would deem to be confidential or proprietary, including without limitation: (a) all information that is marked confidential; (b) the terms of this Agreement and each Order and SOW; (c) features and functionality of the SaaS Product; and (d) Customer Data. Each party shall use the other party’s Confidential Information only for the purposes of this Agreement. Each party shall maintain the confidentiality of the other party’s Confidential Information in the same manner in which it protects its own Confidential Information of like kind, but in no event shall either party take less than reasonable precautions to prevent the unauthorized disclosure or use of the other party’s Confidential Information. Each party is permitted to disclose the other party’s Confidential Information to its employees, contractors and other third parties on a need to know basis only, provided that such employees, contractors and/or third parties have contractual or legal confidentiality obligations to that party no less stringent than those contained in this Agreement. Each party shall be and remain fully liable and responsible for its employees’, contractors’ and/or other third parties’ unauthorized disclosure or use of the other party’s Confidential Information. Each party is permitted to disclose the other party’s Confidential Information as legally required in response to a court order, subpoena, administrative proceeding and/or similar legal process; provided that it, to the extent legally permitted, gives the other party reasonable notice of the request, and an opportunity to defend and/or attempt to limit or prevent the disclosure of its Confidential Information. The confidentiality provisions of this Agreement do not apply to information that is or becomes generally available or known to the public through no act or omission of the receiving party; was received lawfully from a third party through no breach of any obligation of confidentiality owed to the disclosing party; or created by a party independently of its access to or use of the other party’s Confidential Information. Upon termination of this Agreement, each party shall return the other party’s Confidential Information and shall not use the other party’s Confidential Information for its own, or any third party’s, benefit. The provisions of this Section shall survive termination of this Agreement for so long as the Confidential Information remains confidential.
10.1 CatalystXL will defend against claims, causes of action, and investigations by third parties and will indemnify Customer against any resulting judgments, fines, settlements, court costs, and reasonable attorneys’ fees for third party claims alleging that the SaaS Product infringes a U.S. patent, copyright, or trade secret. Notwithstanding the foregoing, CatalystXL shall have no obligation to defend or indemnify Customer: (i) if the alleged infringement arises from a modification of the SaaS Product, unless such modification was performed by CatalystXL or by a third party on CatalystXL’s behalf; (ii) if Customer misused the SaaS Product or the third party claim result from Customer’s breach of this Agreement; or (iii) if the alleged infringement arises from the combination of the SaaS Product with, or to the extent the third party claim is based on, any information, design, specification, instruction, software, service, data, hardware, material, product or process not provided by CatalystXL.
10.2 If CatalystXL believes or it is determined that the SaaS Product violates, or may have violated a third party’s intellectual property rights, CatalystXL may choose to either modify the SaaS Product to be non-infringing (while substantially preserving its functionality) or obtain a license to allow for continued use, or if these alternatives are not commercially reasonable, CatalystXL may end the Subscription for the SaaS Product and refund any unused, prepaid fees that Customer may have paid to CatalystXL for the SaaS Product and terminate the Order. This Section 10 provides Customer’s exclusive remedy for any infringement claims or damages related to this Agreement.
10.3 Customer will defend against claims, causes of action, and investigations by third parties and will indemnify CatalystXL against any resulting judgments, fines, settlements, court costs, and reasonable attorneys’ fees for third party claims (i) alleging that the Customer Data infringes a patent, copyright, trademark, trade secret, or other intellectual property right; (ii) arising from or in connection with Customer’s unauthorized use of the SaaS Product; or (iii) Customer’s use of the Deliverables.
10.4 The indemnified party must provide timely notice of a claim for which it seeks indemnification, provided that untimely notice will only relieve the indemnifying party of its defense and indemnification obligations if the indemnifying party is actually prejudiced as a result of the untimely notice. The indemnified party will provide reasonable assistance to the indemnifying party in the defense of any such third party claims. The indemnifying party will have sole control over the defense, but the indemnified party will have the right to obtain its own counsel at its own cost.
- Limitation of Damages and Liability
Except with respect to a party’s indemnification obligations, a party’s breach of its confidentiality obligations set forth in Section 9, and/or a party’s gross negligence or willful misconduct, in no event shall either party be liable to the other for any consequential, special, incidental, punitive, exemplary, or indirect damages; or for lost profits, lost revenues, harm to goodwill, loss of sales, loss of data, loss of data use, loss of reputation, or the costs of procuring replacement services, regardless of whether such damage was foreseeable. This limitation will apply to all claims under all theories of law and equity, except where prohibited by law. Except with respect to a party’s indemnification obligations, a party’s breach of its confidentiality obligations set forth in Section 9, a party’s gross negligence or willful misconduct, and/or Customer’s payment obligations under this Agreement, in no event shall the aggregate liability of CatalystXL arising out of or related to this Agreement or any Order or SOW, whether in contract, tort, or otherwise, exceed the total amounts actually paid or payable under such Order or SOW giving rise to the liability during the twelve (12) months immediately preceding the event giving rise to such liability.
CatalystXL may include the Customer name and logo on its public customer list. CatalystXL may also partner with Customer on co-marketing and public relations activities, subject to Customer’s approval, to demonstrate the launch and success of the SaaS Product (e.g. press release, case study, video). Customer grants CatalystXL a perpetual, non-exclusive, worldwide license to use its trademark for these limited purposes.
- General Terms
- Authority. Each party warrants that it has the authority to enter into this Agreement and each Order.
- Assignment. Customer may not assign this Agreement, in whole or in part, without CatalystXL’s prior express written consent, which shall not be unreasonably withheld or delayed. Any attempted assignment without such written consent shall be void. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.
- Force Majeure. Except for Customer’s obligation to pay for access to the SaaS Product and/or Services, neither party shall be liable for any failure or delay in performing its obligations hereunder during any period in which such performance is prevented or delayed by causes beyond its reasonable control, including without limitation, flood, war, embargo, riot, epidemics or the intervention of any government authority, unrelated to any act or failure to act by the party claiming the force majeure event. If, due to a force majeure condition, the scheduled time of delivery or performance is or will be delayed for more than thirty (30) days after the scheduled date, the party not relying upon the force majeure condition may terminate, without liability to the other party, the Order, SOW or any portion thereof covering the delayed SaaS Product or Services.
- Independent Contractors. CatalystXL is an independent contractor, and each party agrees that no partnership, joint venture, or agency relationship exists between the parties. Neither party has the authority to create any obligations for the other, or to bind the other to any statement, representation or document.
- Export Compliance. Customer will comply with the export control and economic sanctions laws and regulations of the United States and other applicable jurisdictions. Consistent with that obligation, Customer will not make the SaaS Product or Deliverables available to any person or entity that is: (i) located in a country that is subject to a U.S. government embargo, (ii) listed on a U.S. government list of prohibited or restricted parties, or (iii) engaged in activities directly or indirectly related to the proliferation of weapons of mass destruction.
- Governing Law and Forum. This Agreement shall be construed in accordance with the laws of the State of Michigan, excluding its conflict of law provisions. The parties agree that the exclusive jurisdiction for the institution and maintenance of any action for judicial relief shall be in either the State courts sitting in Wayne County, Michigan or the United States District Court for the Eastern District of Michigan. Each party hereby waives any claim that such court does not have personal jurisdiction over it or is an inconvenient forum.
- No Waiver. The failure of a party to timely enforce an obligation under this Agreement or an Order or SOW will only be construed as a waiver if given in writing and will not act to waive any other obligation, including any future occurrence of the waived obligation.
- Complete Agreement. This Agreement and any Orders or SOWs represent the entire agreement between the parties with respect to its subject matter and supersedes all prior oral or written representations, agreements, or other communications, relating to the subject matter of this Agreement. CatalystXL reserves the right, at its sole discretion, to change or modify portions of this Agreement at any time. Any such changes will become effective no earlier than three (3) days after they are posted. Customer’s continued use of the SaaS Products or receipt or Services or Deliverables after the date any such changes become effective constitutes its acceptance of the new Agreement. .
- Subcontractors. CatalystXL may utilize subcontractors to provide the SaaS Product and/or Services, provided that CatalystXL remains responsible for delivery of the SaaS Product and/or Services established in the Order and/or SOW.
- Notices. All notices under this Agreement must be in writing and sent either by hand delivery; certified mail, return receipt requested; overnight courier; email; or by facsimile (with a confirming copy by certified mail or overnight courier) and will be effective when received by such party, or refused by such party. Notices to CatalystXL shall be sent to: 42 Harbor Hill Road, Grosse Pointe Farms, MI 48236, Attention: Mark Russell. Notices to Customer shall be sent to the address set forth in an Order or SOW or any physical or electronic address that CatalystXL maintains on file for Customer.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, such provision will be enforced to the fullest extent that it is valid and enforceable under applicable law. All other provisions of this Agreement shall remain in full force and effect.
- Waiver of Jury Trial. FOR THEIR MUTUAL BENEFIT, CATALYSTXL AND CUSTOMER WAIVE ANY RIGHT TO TRIAL BY JURY IN THE EVENT OF LITIGATION REGARDING THE PERFORMANCE OR ENFORCEMENT OF, OR IN ANY WAY RELATED TO, THIS AGREEMENT.