I. SUBSCRIBER will not make SupplierTRACKER available to, or use any data for the benefit of, anyone other than SUBSCRIBER, unless receiving written approval from CATALYST. Customer will not sell, resell, license, sublicense, distribute, make available, rent or lease any Service or Software, or use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party.
II. SUBSCRIBER will not directly or indirectly: reverse engineer, decompile, disassemble, or otherwise attempt to discover or change the source code, object code or underlying structure, ideas, know-how or algorithms relevant to SupplierTRACKER; modify, translate, or create derivative works based on SupplierTRACKER (except to the extent expressly permitted or approved, in writing, by CATALYST); or remove any proprietary notices or labels.
III. SUBSCRIBER shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use SupplierTRACKER, including without limitation, hardware, software, networking, WSA and the like. Customer shall also be responsible for maintaining the security of Customer’s account, passwords, and files and for all uses of Customer’s account with or without Customer’s knowledge or consent, and Customer hereby acknowledges and agrees that Telos shall have no responsibility for such matters
IV. SUBSCRIBER will not use a Service or Software to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights.
V. SUBSCRIBER will NOT store any document that features sensitive personal data of any kind including, but not limited to, Social Security Numbers, Credit Card Numbers, Bank Numbers, or anything that would be reasonably considered sensitive data.
2 - Warranty and Disclaimer
I. CATALYST shall use reasonable efforts consistent with prevailing industry standards to provide and maintain SupplierTRACKER in a manner which minimizes errors and interruptions.
II. SUBSCRIBER acknowledges that SupplierTRACKER may be temporarily unavailable due to scheduled maintenance or for unscheduled emergency maintenance, either by CATALYST or by third-party providers, or because of other causes beyond CATALYST’S reasonable control.
Where reasonably possible, CATALYST shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.
III. CATALYST does NOT warrant that SupplierTRACKER will be uninterrupted or error free; nor does CATALYST make any warranty as to the results that may be obtained from the use of SupplierTRACKER. The SupplierTRACKER portal is provided “AS IS” and CATALYST disclaims all warranties of any type, express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose and non-infringement.
3 - Indemnification
I. Each party to this agreement shall defend, hold harmless and indemnify the other party against any and all claims, liabilities, damages, costs and expenses (including reasonable attorney fees and costs) asserted against, imposed upon or incurred by a party that arises out of, or in connection with, the party’s default under or failure to perform any contractual or other obligations, commitment or undertaking under this agreement, or the malpractice or negligence of the party or its employees, agents, or representatives in the discharge of its or their professional responsibilities, except to the extent any such action, claim, demand, liability, losses, damages, cost or expense was caused by the actions or omissions of the party claiming indemnification hereunder, or its directors, officers, employees, agents, or representatives. This provision shall survive termination of the agreement with respect to any claim, action, or proceeding that relates to acts or omissions occurring during the term of this agreement.
4 - Limitation of Liability and Limitation on Damages
I. In no event shall CATALYST, its suppliers, or the web services provider be liable for any direct, indirect, incidental, special, consequential, exemplary, or punitive damages, including without limitation damages for loss of profits, loss of good will, loss of data or use, or any business interruption or disruption, incurred by SUBSCRIBER or any third party, whether an action sounding in contract, tort, warranty, fiduciary duty, statutory claim under any Federal, State, or Local law of the United States of America OR any other jurisdiction, OR any other type of legal claim, even if the other party has been advised of the possibility of such damages.
II. The aggregate and cumulative total liability of CATALYST, its suppliers, and/or the web services provider for damages, including for direct damages, under the agreement shall in no event exceed the amount of subscription costs paid by SUBSCRIBER over the prior six (6) months. SUBSCRIBER acknowledges that the fees applicable for the services reflect the allocation of risk set forth in this agreement and that CATALYST would not have entered into this agreement without the disclaimers of warranty and limitation of both liability and damages described in this agreement.
5 - Confidentiality and Proprietary Rights
I. Proprietary Information of CATALYST includes non-public information regarding features, functionality, and performance of SupplierTRACKER.
II. Proprietary Information of SUBSCRIBER includes non-public data provided by SUBSCRIBER to CATALYST in usage of the SupplierTRACKER portal.
III. CATALYST will protect all SUBSCRIBER information and SUBSCRIBER agrees to protect all CATALYST data and will be treated as confidential.
IV. CATALYST and SUBSCRIBER agree to take reasonable precautions to protect confidential and proprietary information or divulge to any third person any such information.
V. SUBSCRIBER acknowledges and agrees that any content and/or materials provided by SupplierTRACKER are and shall always be and remain the sole and exclusive property of CATALYST. CATALYST retains all right, title, and interest in and to the SupplierTRACKER content and/or materials
VI. SUBSCRIBER does not and will not be deemed to acquire any right, title or interest therein, except as expressly granted in this agreement. Further, SUBSCRIBER does not and will not be deemed to acquire any right, title or interest in any patent(s), copyrighted material, or other intellectual property, or proprietary information or data, owned by CATALYST and /or any of its subsidiaries or affiliates.
VII. SUBSCRIBER shall own all right, title and interest in and to the SUBSCRIBER data as well as any data that is derived from the SUBSCRIBER data and provided to Customer as part of the Services.
VIII. Notwithstanding anything to the contrary, CATALYST shall have the right to collect and analyze data and other information relating to use such information and data to improve and enhance services provided and for other development, diagnostic, and corrective purposes.
6 - Governing Law
I. This agreement shall be interpreted and governed in the state of Minnesota. Each party consents to exclusive jurisdiction in Minnesota and consents to mediation and arbitration with respect to any claims that arise out of this agreement.