CATALYST CANNOT BE DEPLOYED UNLESS YOU (“SUBSCRIBER”) ACCEPT THE TERMS AND CONDITIONS OF THIS END USER SUBSCRIPTION AGREEMENT (“AGREEMENT”) BY CLICKING THE “ACCEPT” BOX BELOW. PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCEPTING IT. IF, UPON REVIEW, YOU CHOOSE NOT TO ACCEPT THE TERMS AND CONDITIONS SET FORTH HEREIN, DO NOT ACCESS, DOWNLOAD OR USE CATALYST.
PLEASE NOTE THAT BY AGREEING TO THESE TERMS AND CONDITIONS, YOU ALSO AGREE TO ENSURE THAT ANY PERSON ENTITLED TO USE CATALYST, SUCH AS YOUR EMPLOYEES AND/OR CONSULTANTS, WILL ALSO ABIDE BY THE TERMS OF THIS AGREEMENT, AND YOU WILL INDEMNIFY DATAFINCH TECHNOLOGIES, INC. (“DATAFINCH”) AGAINST ANY BREACH OF THIS AGREEMENT BY SAID EMPLOYEES AND/OR CONSULTANTS.
Generally, terms defined in the preamble of this Agreement have their assigned meanings and the following terms have the meanings assigned to them.
“Catalyst” means the Catalyst Data Collection Platform and all related materials, documents and media to which a Subscriber has access as part of a subscription.
“Learner” means the person on whom Catalyst is being used to take data.
“User” means each person who is authorized by Subscriber to access or use Catalyst, directly or indirectly.
2. SUBSCRIPTIONS; PRICING AND PAYMENTS
Subscriptions. Catalyst is a subscription service. Each Learner in Catalyst must have an associated subscription to Catalyst.
Pricing. Pricing for Catalyst shall be set by DataFinch and is determined on a per Learner per subscription period basis.
Payment. All payments to DataFinch shall be due immediately upon receipt of DataFinch’s invoice. Invoices are generated for payment in advance of the use of the Subscriptions. All fees paid for Catalyst are nonrefundable.
Subscriber will provide DataFinch with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to DataFinch. By providing credit card information to DataFinch, Subscriber authorize DataFinch to charge such credit card for Catalyst for the initial subscription term and any renewal subscription term(s) as set forth in Section 9 (Term and Termination). Such charges shall be made in advance, in accordance with the subscription term chosen by the Subscriber. The Subscriber is responsible for providing complete and accurate billing and contact information to DataFinch and notifying DataFinch of any changes to such information.
Late Payments. All amounts that are not paid by Subscriber within thirty (30) days will be subject to a late charge equal to the lesser of one and one-half percent (1.5%) per month and the maximum allowed by applicable law. In the event that any payment due under this Agreement is overdue, DataFinch reserves the right to suspend the rights granted under this Agreement until such delinquency is corrected.
Trial. If the subscriber registers for a free trial of Catalyst, DataFinch will make Catalyst available on a trial basis free of charge for thirty (30) days for up to ten (10) Learners. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. ANY DATA YOU ENTER INTO CATALYST, AND ANY CUSTOMIZATIONS MADE TO CATALYST BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO CATALYST, PURCHASE UPGRADED SERVICES, OR EXPORT SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD.
Taxes. Catalyst fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). The Subscriber is responsible for paying all Taxes associated with the purchase of Catalyst. If DataFinch has the legal obligation to pay or collect Taxes for which the Subscriber is responsible, DataFinch will invoice Subscriber and Subscriber will pay that amount or otherwise provide DataFinch with a valid tax exemption certificate authorized by the appropriate taxing authority.
3. GRANT OF LICENSE
License. Subject to the terms and conditions of this Agreement, DataFinch agrees to provide Subscriber with access to Catalyst. DataFinch grants to Subscriber as part of the subscription, a non-exclusive, nontransferable right to use Catalyst. Subscriber may allow its employees and independent consultants to use Catalyst solely for the benefit of Subscriber; provided, however, Subscriber remains responsible for any breach of this Agreement. Any other use of Catalyst by any person, business, corporation, government organization or any other entity is strictly forbidden and is a violation of this Agreement.
Restriction on Use. Use of Catalyst is restricted to the Subscriber’s own internal business operations. Catalyst may not be used for the benefit of any other person or entity. Access to Catalyst is governed by the maximum number of authorized Learners for whom Subscriber has purchased subscriptions. Subscriber may not: (a) copy Catalyst or any portion thereof; (b) use Catalyst to store or transmit malicious code, or infringing, tortious or otherwise unlawful materials; or (c) interfere with the business or operations of DataFinch.
The Subscriber may not use Catalyst if the Subscriber is a direct competitor. In addition, Subscribers may not access Catalyst for purposes of monitoring availability, performance or functionality, or for any other benchmarking or competitive purposes.
To the extent that Catalyst may be used to reproduce, modify, publish and distribute materials, it is licensed to you only for reproduction, modification, publication and distribution of non-copyrighted materials, materials to which the Subscriber owns the copyright(s), or materials Subscriber is authorized or legally permitted to reproduce, modify, publish or distribute.
Delivery of Catalyst. Catalyst is provided to Subscriber through a web based portal and an application for handheld devices.
Audit Rights DataFinch may, at any time, audit Subscriber’s use of Catalyst by accessing Catalyst through the DataFinch servers to ensure compliance with the terms of this Agreement. Unless specifically authorized in writing in advance by DataFinch, Subscriber may not rent, lease or timeshare Catalyst or provide subscription services for Catalyst or permit others to do so.
Documentation DataFinch hereby grants to Subscriber a non-exclusive, non-transferable, non-sublicensable, internal use only license to use any documentation associated with Catalyst solely for the purposes of utilizing Catalyst.
4. SUPPORT AND TRAINING
Product Support Services DataFinch shall provide standard technical support services to Subscriber in accordance with the terms of this Agreement. The cost of maintenance and support services is included in the Subscription price. Additional support and development services may be available on a case-by-case basis. The terms for such additional services shall be mutually agreed upon and specified in a separate written agreement.
Updates and Upgrades DataFinch may from time to time conduct updates and upgrades to Catalyst, which may temporarily affect its use. DataFinch will, to the extent possible and commercially reasonable, provide prior notice of such updates and upgrades to Subscriber and conduct such updates and upgrades outside of regular business hours.
5. PROPRIETARY RIGHTS AND PROTECTION THEREOF
Acknowledgment. Catalyst is licensed as a subscription, not sold, by DataFinch to Subscriber, and nothing in this Agreement will be interpreted or construed as a sale or purchase of Catalyst. DataFinch and Subscriber acknowledge and agree that, as between DataFinch and Subscriber, DataFinch owns and will own all rights, title, and interest, including all intellectual property rights therein and thereto, in and to Catalyst and Documentation, and no title to any rights is transferred to Subscriber. The use by Subscriber of any rights is authorized only for the purposes set forth herein and, upon termination of this Agreement for any reason, such authorization will cease. Subscriber will not have any rights in or to Catalyst except as expressly granted in this Agreement. DataFinch reserves to itself all rights to Catalyst not expressly granted to Subscriber under this Agreement.
No Other Rights. Subscriber may not, directly or through any person or entity, in any form or manner, decompile, reverse engineer, disassemble or otherwise attempt to derive source code or object code from Catalyst, except as explicitly permitted under this Agreement or expressly permitted by applicable law.
Proprietary Notices. Subscriber will ensure that all copies or partial copies of Catalyst will display copyright and other proprietary notices to protect DataFinch’s underlying ownership rights in the same manner that DataFinch displays such notices in Catalyst or in any manner reasonably requested by DataFinch. Subscriber will not, nor will it permit others to, remove, alter, cover, or obscure any such notices from any component of Catalyst.
Subscriber Data. DataFinch acknowledges that all Subscriber data belongs to Subscriber and that other than specifically provided herein, DataFinch acquires no rights, title or interest thereto. DataFinch shall maintain commercially reasonable safeguards for the protection and security of Subscriber data. Other than as specifically permitted by Subscriber in writing, DataFinch shall not: (a) modify the Subscriber data; or (b) disclose the Subscriber data unless compelled by law.
Comments and Suggestions. Should Subscriber provide DataFinch with comments or suggestions for the modification, correction, improvement or enhancement of any part of Catalyst, Subscriber grants to DataFinch a non-exclusive, irrevocable, worldwide, royalty-free license, with the right to sublicense, the rights to use and disclose such comments and suggestions in any manner DataFinch chooses, without reference to the source.
“Confidential Information” means, subject to the limitations set forth below, all information disclosed by one party to the other party that (1) is specifically identified as confidential, or (2) would reasonably be considered confidential. In particular, Confidential Information shall include any trade secret, process, technique, invention, algorithm, computer program (source and object codes), design, drawing, formula, test data or other information relating to the disclosing party’s business; information concerning any of its past, current or possible future products or projects; information about its research, development, purchasing, accounting, marketing or selling of products; and information concerning any of its past, current or possible future customers, business prospects, suppliers, employees, investors or business, whether in oral, written, graphic or electronic form.
Confidential Information shall not include information that the receiving party can prove:
Nondisclosure of Confidential Information. The parties each agree not to use any Confidential Information disclosed to it by the other party for its own use or for any purpose other than in connection with the purposes contemplated by this Agreement. Neither party shall disclose or permit disclosure of any Confidential Information of the other party to third parties or to employees of the party receiving Confidential Information, other than directors, officers, employees, consultants and agents who are required to have the information for the purposes contemplated by this Agreement.
Each party shall limit disclosure of the other party’s Confidential Information to those of its directors, officers, employees, consultants and agents who are subject to obligations of secrecy and limited use no less stringent than those set forth in this Agreement. Furthermore, each party agrees that it shall:
Return of Confidential Information. Upon expiration or termination of this Agreement, each party shall return all Confidential Information received from the other party.
Consent to Use of User Data. Other sections in this section not withstanding, DataFinch may collect, maintain, process and use diagnostic, technical, usage and related information, including but not limited to unique system or hardware identifiers, information about User’s devices, computer, system and application software, and peripherals, that is gathered periodically to improve DataFinch’s products and services, facilitate the provision of software updates, product support and other services (if any) related to Catalyst, and to verify compliance with the terms of this Agreement.
Location Data. DataFinch may provide certain services through Catalyst that rely upon location information. To provide and improve these services, where available, DataFinch may transmit, collect, maintain, process and use User’s location data. The location data and queries collected by DataFinch are collected in a form that does not personally identify any User and may be used by DataFinch to provide and improve location-based products and services. By using any location-based services provided by or through Catalyst, Subscriber agrees and consents to DataFinch's transmission, collection, maintenance, processing and use of location data and queries to improve such products and services. Subscriber may withdraw this consent at any time by turning off location based services on Subscriber’s device(s).
Remedies. Any breach of the restrictions contained in this Section 6 is a breach of this Agreement that may cause irreparable harm to the non-breaching party. Any such breach shall entitle the non-breaching party to injunctive relief in addition to all other legal remedies.
Indemnification by DataFinch. DataFinch agrees, at its own expense, to defend, or at its option to settle, any claim or action brought against Subscriber on the issue of infringement of any copyright, trade secret, or U.S., or Canadian patent by Catalyst used or distributed within the terms of this Agreement, and to indemnify Subscriber against any and all damages and costs, including legal fees, that a court awards against Subscriber under any such claim or action; provided that Subscriber provides DataFinch with (a) prompt written notice of such claim or action, (b) sole control and authority over the defense or settlement of such claim or action and (c) proper and full information and reasonable assistance to defend and settle any such claim or action.
Injunctions. In the event that use of Catalyst is, or in DataFinch’s sole opinion is likely to be, enjoined due to the type of infringement described above, DataFinch, at its option and expense, may either (a) modify Catalyst so that they become non-infringing, (b) replace Catalyst with functionally equivalent non-infringing Software reasonably acceptable to Subscriber or, if the foregoing alternatives are not reasonably available to DataFinch, (c) terminate this Agreement and accept return of Catalyst and refund a prorated portion of the Subscription Fee.
Exceptions. Notwithstanding the other provisions of Section 7, DataFinch will have no liability to the extent that any such claim would have been avoided but for (a) use of Catalyst with any other products not provided by DataFinch or (b) modification of Catalyst after delivery by DataFinch.
Limitation. THE FOREGOING PROVISIONS OF THIS SECTION 7 STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF DATAFINCH AND THE SOLE AND EXCLUSIVE REMEDY OF SUBSCRIBER WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OF PATENTS, COPYRIGHTS, TRADE SECRETS, TRADEMARKS OR OTHER INTELLECTUAL PROPERTY RIGHTS BY CATALYST OR ITS REPRODUCTION, DISTRIBUTION OR USE.
Limited Warranty. During the term of the Subscription, DataFinch warrants that Catalyst will operate in substantial conformance with the then-current DataFinch published specifications under normal use. Notwithstanding the previous sentence, DataFinch does not warrant that: (a) Catalyst will be free from defects; (b) Catalyst will satisfy all of Subscriber’s requirements; (c) Catalyst will operate without interruption or error. DataFinch shall use reasonable efforts to remedy any significant non-conformance reported to DataFinch that DataFinch can reasonably identify and confirm. This paragraph sets forth Subscriber’s sole and exclusive remedy and DataFinch’s entire liability for any breach of warranty or other duty related to Catalyst. Any unauthorized modification to Catalyst, tampering with Catalyst, use inconsistent with Catalyst’s primary purpose, or related breach of this Agreement shall void the aforementioned warranty.
EXCEPT AS EXPLICITLY SET FORTH HEREIN AND TO THE EXTENT ALLOWED BY LAW, THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO CATALYST. DATAFINCH DOES NOT WARRANT THAT CATALYST IS ERROR-FREE OR THAT OPERATION OF CATALYST WILL BE SECURE OR UNINTERRUPTED. DATAFINCH EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON PRODUCTS THAT ARE BASED UPON OR CREATED THROUGH USE OF CATALYST.
Subscriber-Hosted Environment. Subscribers are not authorized to host Catalyst in their own environment and must use Catalyst through the web based portal and applications provided by DataFinch. Subscriber understands and agrees that, any changes made by Subscriber, without DataFinch’s written consent, to the administrative settings of the underlying operating system, servers, or third party libraries included in Catalyst will void any warranty provided by DataFinch hereunder and will automatically make Subscriber ineligible for standard technical support.
Protection of Your Data. DataFinch will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of your data. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of your data.
Beta Services. From time to time, DataFinch may invite Subscribers to try additions or modifications to Catalyst as beta trials at no charge. Subscribers may accept or decline any such beta trials. Beta trials are for evaluation purposes and not for production use, are not considered part of Catalyst under this Agreement, are not supported, and may be subject to additional terms. Unless otherwise stated, any beta trial periods will expire upon the earlier of one year from the trial start date or the date that a version of the beta trials becomes generally available as an addition or modification to Catalyst. DataFinch may discontinue beta trials at any time at its sole discretion and may never make them generally available. DataFinch will have no liability for any harm or damage arising out of or in connection with a beta trials.
Protection of Health Information. Subscriber acknowledges information or data captured or used in conjunction with Catalyst could be privileged and confidential information, including patient information protected by federal and state privacy laws. As a result, use of Catalyst requires attention and care so as to avoid any violations of such laws.
Treatment Decisions and Outcomes. Any health or treatment information displayed in Catalyst is provided for general informational purposes only and is not intended to be relied upon as, or a substitute for, medical advice. Subscriber is solely responsible for the health or treatment decisions made in conjunction with use of Catalyst and any consequences resulting therefrom. DataFinch does not guarantee the accuracy, completeness, or timeliness of health or treatment information appearing within Catalyst or that desired results will be obtained.
9. TERM AND TERMINATION
Term. The subscription period is chosen by the Subscriber when purchasing Catalyst. This Agreement shall remain in effect and apply during the initial term and all successive terms thereafter.
Automatic Renewal. After the initial subscription term, all subscriptions shall be renewed automatically for successive terms equal to the initial subscription term unless either party gives the other party written notice of its intent not to renew the term at least thirty (30) days prior to the expiration of the then-current term.
Termination for Cause. Subscriber may terminate this Agreement upon written notification to DataFinch at least thirty (30) days in advance. However, Subscriber shall not be entitled to a refund of any prepaid or other fees. DataFinch may terminate this Agreement if DataFinch finds that Subscriber has violated the terms hereof. Upon termination by either party, Subscriber shall cease using Catalyst, and shall destroy or return to DataFinch copies of Catalyst, if any, in its possession, and certify in writing that all copies thereof, including backup copies, if any were authorized, have been destroyed.
Effect of Termination. If this Agreement is terminated, then all of Subscriber’s rights and licenses with respect to Catalyst shall terminate. All copies of DataFinch Confidential Information in Subscriber’s possession at the time of termination or expiration of this Agreement shall, at DataFinch’s option, be promptly destroyed or returned to DataFinch.
Subscriber Data Exports. DataFinch shall grant Subscriber read-only access to Subscriber’s data for the purposes of exporting said data.
Survival. The provisions of Sections 6, 7, 10, 11 and all payment obligations shall survive the expiration or termination of this Agreement for any reason. All other rights and obligations of the Parties shall cease upon termination of this Agreement.
10. LIMITATION OF LIABILITY
EXCEPT FOR LIABILITY RESULTING FROM A BREACH OF SECTIONS 3, 6 or 7, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, LOSS OF DATA, LOST PROFITS OR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE OR STRICT LIABILITY), ARISING OUT OF THIS AGREEMENT. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT SHALL DATAFINCH’S LIABILITY ARISING OUT OF THIS AGREEMENT EXCEED THE TOTAL SUBSCRIPTIONS FEES RECEIVED BY DATAFINCH FROM SUBSCRIBER HEREUNDER IN THE PREVIOUS TWELVE MONTHS FROM THE DATE OF THE CLAIM. SUBSCRIBER ACKNOWLEDGES AND AGREES THAT THE AMOUNTS PAYABLE HEREUNDER BY SUBSCRIBER ARE BASED IN PART UPON THESE LIMITATIONS, AND FURTHER AGREES THAT THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
Assignment. Subscriber may not assign or transfer, by operation of law or otherwise, any of its rights under this Agreement to any third party without DataFinch’s prior written consent; any attempted assignment or transfer in violation of the foregoing will be void.
Waivers. The waiver, express or implied, by either of the Parties of any right or any failure to perform or breach by the other party, shall not constitute or be deemed as a waiver of any other right or any other failure to perform or breach by the other party, whether of a similar or dissimilar nature.
Marketing Activities. Subscriber agrees that DataFinch may from time to time identify Subscriber (with its name, logo and/or trademark) as a DataFinch Subscriber on its websites, sales and marketing materials or press releases.
Governing Law. This Agreement is governed by the laws of the State of Georgia. The Parties consent to the jurisdiction of the courts of the State of Georgia and the United States Northern District Court located in Atlanta, Georgia for any dispute arising out of a breach of this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
Notices. Any notice required or permitted by this Agreement shall be in writing and shall be deemed sufficient upon receipt, when delivered personally or by courier, overnight delivery service or confirmed facsimile, or 48 hours after being deposited in the regular mail as certified or registered mail. Notice by email will be considered given one business day after transmission if confirmation of transmission can be established.
Severability. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provisions of this Agreement.
Independent Contractor. The parties to this Agreement are independent contractors, and nothing contained in this Agreement shall be construed to constitute the parties as partners, joint venturers, co-owners or otherwise as participants in a joint or common undertaking.
Force Majeure. Either party shall be excused from performance and shall not be in default in respect of any obligation hereunder to the extent that the failure to perform such obligation is due to any circumstance not within the reasonable control of the party affected, but only if and to the extent that (i) such circumstance, despite the exercise of reasonable diligence and the observance of reasonable care, cannot be, or be caused to be, prevented, avoided or removed by such party, and (ii) such circumstances materially and adversely affects the ability of party to perform its obligations under this Agreement, and such party has taken all reasonable precautions, due care and reasonable alternative measures in order to avoid the effect of such event on the party’s ability to perform its obligations under this Agreement and to mitigate the consequences thereof.
Amendment. This Agreement may only be amended if such amendment is in writing and signed by both Parties.
Captions. Headings and titles contained in this Agreement have been inserted for reference purposes only and shall not be considered part of this Agreement in construing this Agreement.
Construction. The language in all parts of this Agreement shall be in all cases construed according to its fair meaning, and not strictly for or against any party.
Entire Agreement. This Agreement represents the entire agreement between the parties regarding the subject matter contemplated herein. This Agreement supersedes in all respects any and all prior oral or written negotiations, discussions, commitments, representations, agreements and other understandings between the parties with respect to the subject matter contemplated by this Agreement, and all such prior understandings are merged herein.
The above paragraph notwithstanding, Subscriber may have another written agreement directly with DataFinch that supplements or supersedes all or portions of this agreement.