These CATCH Terms of Service (this “Agreement“) govern Your access to and use of the services provided by People Services Center, Inc. d/b/a Catch Intelligence, a Nebraska corporation (“CATCH“). By clicking “I Accept,” creating an account, or otherwise accessing or using the Services, You agree to be bound by this Agreement. If You do not agree to this Agreement, You may not access or use the Services. This Agreement is effective as of the date You first accept this Agreement or access or use the Services (the “Effective Date“). As used in this Agreement, “You” or “Your” means the individual that accepts this Agreement and the company such individual represents. CATCH and You are each referred to herein as a “Party” and collectively the “Parties.” The Parties agree as follows:
PLEASE READ CAREFULLY: CATCH PROVIDES YOU ACCESS TO THE SERVICES SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT YOU ACCEPT AND COMPLY WITH ALL TERMS AND CONDITIONS HEREIN. BY CLICKING “I ACCEPT,” SIGNING UP FOR THE SERVICES, OR BY ACCESSING OR USING ANY CATCH SERVICE, YOU ACCEPT THESE TERMS AND AGREE THAT YOU ARE LEGALLY BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, (A) CATCH MAY IMMEDIATELY SUSPEND OR TERMINATE YOUR ACCESS TO THE SERVICES, AND (B) YOU MUST NOT ACCESS OR USE THE SERVICES. THIS AGREEMENT CONTAINS AN ARBITRATION AGREEMENT AND A CLASS ACTION WAIVER. THESE TERMS ARE IMPORTANT TO READ CAREFULLY BECAUSE THEY IMPACT, RESTRICT, OR ELIMINATE YOUR ABILITY TO FILE SUIT IN A COURT.
1. SERVICES
1.01. Platform. Subject to the terms and conditions of this Agreement, CATCH hereby grants You a limited, non-exclusive, non-sublicensable, non-transferable right to access and use CATCH’s software-asa-service platform during the Term solely for Your internal business operations (the “Services”). “Authorized User” means Your employees and contractors who are authorized by You to access and use the Services.
1.02. Documentation. Subject to the terms and conditions of this Agreement, CATCH hereby grants You a limited, non-exclusive, non-sublicensable, non-transferable right to use the Documentation during the Term of this Agreement solely for Your internal business purposes in connection with the use of the Services. “Documentation” means the manuals, instructions, or other documents and materials CATCH makes available to You which describe the features and functionality of the Services, and instructions for the operation, configuration, installation, or use thereof.
1.03. Upgrades and Modifications. You agree that CATCH may update, upgrade, enhance or modify the Services and Documentation, or any functionality thereof, at any time, including the removal or modification of previously available functionality. All updates, upgrades, enhancements or modifications to the Services made available to You or Authorized Users and Documentation by CATCH will thereby be made part of the Services and Documentation and will be subject to the terms and conditions of this Agreement.
2. TERMS OF USE
2.01. Your Responsibilities. You will not, directly or indirectly, assist any third party, or permit any Authorized User to: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, sell, license, sublicense, assign, transfer, or otherwise make available the Services 4902-4862-8372.4 or Documentation except as permitted by this Agreement; (iii) attempt to adapt, decipher, reverse engineer, decompile, disassemble, or otherwise access the source code or technology of the Services or the Documentation in order to build a competitive product or service, or to build a product or service using similar ideas, features, and functions of the Services; (iv) upload, share, or otherwise disclose data, including Your Data, in violation of any applicable law, rule, or regulation; (v) upload, share, or otherwise disclose malicious or harmful computer code on, to, or through the Services; (vi) upload, share, or otherwise disclose material on, to, or through the Services that infringes upon or misappropriates the intellectual property right of any third party. While this Agreement is in effect, You will have commercially reasonable physical, technical, and organizational measures in place to prevent unauthorized access to or use of the Services and notify CATCH immediately of any unauthorized access or use. You will promptly deactivate the Authorized User account of any individual no longer authorized to use the Services.
2.02. Your Data. You are and will remain solely responsible for obtaining all requisite authorizations, licenses, and consents for the processing of Your Data, including Personal Information (if any), by CATCH pursuant to or in connection with this Agreement. “Your Data” means the electronic information or data submitted or made available by or on behalf of You or Authorized Users that is received, processed or stored by CATCH or the Services as part of the Services, and excludes, for the avoidance of doubt, Anonymized Data. “Personal Information” means data that identifies, relates to, or could reasonably be linked to a natural person or household, whether directly or indirectly.
2.03. Authorized Users. You will cause all Authorized Users to comply with the use restrictions and obligations in this Agreement. You will be liable to CATCH (i) for any breach of this Agreement by, or caused by, an Authorized User; and (ii) all use of the Services resulting from access to the Services made available by You, whether directly or indirectly, and whether such access or use is permitted by or in violation of this Agreement.
2.04. Suspension. CATCH may suspend the provision of the Services, in whole or in part, at any time if CATCH determines or reasonably suspects that: (i) You or Authorized Users are using or intend to use the Services in violation of this Agreement or in violation of any applicable law, rule or regulation; (ii) any computer system of You or Your Authorized Users has been compromised or unlawfully accessed; (iii) suspension of the Services is necessary to protect the infrastructure of CATCH, the environment in which the Services are deployed or hosted, or CATCH’s Affiliates (defined below) or other customers; or (iv) suspension is required under law, rule or regulation. CATCH may, but is not obligated to, give prior written notice of such suspension. All remedies in this Section 2.04 (Suspension) are in addition to, and not in lieu of, any other remedies available to CATCH. “Affiliate” means any entity that controls, is controlled by, or is under common control with a Party hereto, where control means the power, directly or indirectly, to cause the direction of management and policies of such entity, whether through voting securities, contract, or otherwise.
2.05. Audit. CATCH shall have the right, at its expense, upon at least two (2) business days’ prior written notice to You, to conduct an audit during Your normal business hours to verify Your use of the Services and compliance with this Agreement. You shall reasonably cooperate with CATCH in connection with any such audit.
2.06. Data Processing Addendum. CATCH agrees to process Your Data in connection with the Services in accordance with the terms set forth in the Data Processing Addendum at www.catchintelligence.com/privacy-policy (the “DPA”), which is hereby incorporated by reference into this Agreement. In the event of any conflict between the terms of this Agreement and the DPA, the DPA shall control.
3. FEES AND PAYMENT
3.01. Free Services. Your access to and use of the Services under this Agreement is provided at no charge. CATCH reserves the right to modify, suspend, or discontinue the free Services, or any portion thereof, at any time without notice or liability. CATCH may offer paid features or premium services subject to separate terms and fees.
4. TERM AND TERMINATION
4.01. Term. This Agreement will commence on the Effective Date and will continue until terminated in accordance with this Agreement (the “Term“).
4.02. Termination for Breach. Either Party may terminate this Agreement (i) upon written notice of a material breach to the other Party if the other Party fails to cure such material breach within ten (10) days after receipt of such notice; or (ii) immediately if the other Party materially breaches this Agreement and such breach is incurable.
4.03. Immediate Termination. CATCH may terminate this Agreement immediately upon notice to You if You breach any provision of Section 2 (Terms of Use) or Section 6 (Confidentiality). Either Party may terminate this Agreement immediately upon notice to the other Party if the other Party is adjudged insolvent or bankrupt, institutes or has instituted against it any proceeding seeking relief, reorganization or arrangement under any laws relating to insolvency, makes any assignment for the benefit of its creditors, otherwise becomes insolvent or is unable to pay its obligations as they become due, or dissolves or winds up its business.
4.04. Effect of Termination. Upon expiration or termination of this Agreement: (i) all rights granted to You and Authorized Users to access and use the Services will terminate immediately; and (ii) CATCH’s obligation to provide Services will terminate immediately.
5. OWNERSHIP
5.01. Platform. Except for the limited use rights expressly granted to You in this Agreement, and excluding Third-Party Materials (defined below), if any, CATCH retains all right, title, and interest in and to the Services, Documentation, all software and technology underlying the Services, and all intellectual property rights in and to the same, including those created or developed in the course of providing Services to You. “Third-Party Materials” means any and all goods, services, software, data, or other materials or information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment, or components, of or relating to the Services that are not proprietary to CATCH.
5.02. Your Data. Except for the limited use rights granted to CATCH in this Agreement, You have and retain all right, title, and interest in and to Your Data. You hereby grant CATCH a non-exclusive, worldwide, royalty-free right and license during the Term and any post-Term data retention period in accordance with Section 6 (Confidentiality) to use, reproduce, distribute, modify, display, and prepare derivative works of Your Data for purposes of providing the Services to You or as set forth in CATCH’s Website Privacy Policy www.catchintelligence.com/privacy-policy and any applicable CATCH Application Privacy Policies www.catchintelligence.com/privacy-policy. Your Data is Your Confidential Information.
5.03. Anonymized Data. You acknowledge and agree that CATCH has and retains all right, title, and interest in and to the Anonymized Data (defined below) and all intellectual property rights therein. You acknowledge and agree that CATCH may, without limitation: (i) compile and aggregate Your Data and information that is derived from or based on Your use of and access to the Services, including that of Your 4902-4862-8372.4 Authorized Users; (ii) use, reproduce, modify, distribute, display and create derivative works of Anonymized Data; and (iii) use the Anonymized Data to test, benchmark, modify, and improve the Services. “Anonymized Data” means data, including Your Data, that has been aggregated and anonymized so that it does not identify any individual, household, or entity.
5.04. Feedback. The Parties acknowledge and agree that Feedback (defined below) is not Your Confidential Information or a trade secret. To the extent You have or retain any right in or to the Feedback, You hereby grant CATCH a non-exclusive, worldwide, royalty-free irrevocable, perpetual right and license to use and exploit Feedback without attribution or compensation, including, without limitation the right to grant sublicenses to the same. “Feedback” means any questions, suggestions, ideas, comments, or other communications from You, including Your Authorized Users, regarding the Services.
6. CONFIDENTIALITY
6.01. Confidentiality Obligations. Each Party (the “Receiving Party”) may receive Confidential Information (defined below) from the other Party (the “Disclosing Party”) in connection with this Agreement. The Receiving Party will: (i) only use the Disclosing Party’s Confidential Information for purposes of performing its obligations and enforcing its rights under this Agreement; (ii) not make any use of the Disclosing Party’s Confidential Information other than for the purposes of performing its obligations or enforcement of its rights under this Agreement; (iii) only disclose the Disclosing Party’s Confidential Information to its employees, agents, subcontractors, and advisors (“Representatives”) who have a need to know such information for purposes of performing under this Agreement and who are under written or professional obligations of confidentiality; and (iv) protect the Disclosing Party’s Confidential Information with the same degree of care with which it protects its own Confidential Information of a similar nature, and in no event with less than a reasonable standard of care. The Receiving Party is and will be liable for any breach of these confidentiality obligations by its Representatives. “Confidential Information” means all information pertaining to a Party’s business affairs, plans, designs, strategies, and other proprietary information, trade secrets, and all information which, given the nature of the information disclosed and circumstances surrounding its disclosure, a reasonable person should consider confidential, whether disclosed orally, in writing, or otherwise, and regardless of whether such information is designated as confidential.
6.02. Exclusions to Confidential Information. Confidential Information does not include information that: (i) is or becomes generally available to the public other than as a result of the Receiving Party’s breach of this Agreement; (ii) is obtained by the Receiving Party on a non-confidential basis from a third party that was not legally or contractually restricted from disclosing such information; (iii) was in the Receiving Party’s possession prior to the Disclosing Party’s disclosure hereunder, as established by documentary evidence; or (iv) was or is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information. Notwithstanding the foregoing, in the event the Receiving Party is required to disclose the Disclosing Party’s Confidential Information pursuant to an applicable federal, state or local law, regulation or a valid order issued by a court or governmental agency of competent jurisdiction (a “Legal Requirement”), the Receiving Party will: (a) first give prompt written notice of such Legal Requirement to the Disclosing Party to enable the Disclosing Party to prevent or limit such disclosure, (b) provide all reasonable assistance requested with regard to the same, and (c) if disclosure is required, only disclose the minimal amount of Confidential Information necessary to comply with such Legal Requirement. Personal Information will not be excluded from the definition of Confidential Information, notwithstanding any of the exclusions in Section 6.02(i)-(iv) (Exclusions to Confidential Information) above.
6.03. Return of Confidential Information. You will, at CATCH’s option, return or destroy (by rendering unreadable and unrecoverable) all CATCH Confidential Information in Your possession or 4902-4862-8372.4 control and provide written certification of Your compliance with such obligation within thirty (30) days of the effective date of expiration or termination of this Agreement. You acknowledge and agree that CATCH has no obligation to retain Your Data for more than thirty (30) days beyond the effective date of expiration or termination of this Agreement, except to the extent required by applicable law. You may request that CATCH return Your Data to You in a commercially standard format if You give CATCH written notice of such request within thirty (30) days of the expiration or termination of this Agreement.
7. WARRANTY
7.01. Mutual Warranty. Each Party hereby represents and warrants that: (i) it has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement; (ii) the execution, delivery and performance of this Agreement (a) has been duly authorized by such Party, and (b) will not conflict with, result in a breach of or constitute a default under any other agreement to which such Party is a party or by which such Party is bound.
7.02. CATCH Warranty. CATCH hereby warrants that the Services will function substantially in accordance with the Documentation when accessed and used in accordance with this Agreement and such Documentation. Your sole and exclusive remedy and CATCH’s entire liability for any breach of the warranty under this Section 7.02 shall be the correction of the deficient Services that caused the breach of warranty, or, if CATCH cannot substantially correct the deficiency in a commercially reasonable manner, You may terminate this Agreement. Any such termination must occur within three (3) months of CATCH’s failure to correct.
7.03. Your Warranty. You hereby represent and warrant that: (i) You are duly authorized to provide Your Data to CATCH for all purposes related to this Agreement; and (ii) CATCH’s possession, reproduction, use or disclosure (separately and together) of Your Data in accordance with this Agreement will not infringe upon, misappropriate or violate any right of any third party, or violate any applicable law governing CATCH’s access to or processing of Your Data.
7.04. Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 7 (WARRANTY), THE SERVICES AND ALL SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, AND CATCH MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR OPERATE WITHOUT INTERRUPTION, WHETHER SUCH WARRANTIES ARE EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, QUALITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR ELSEWHERE, ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS (IF ANY) IS STRICTLY BETWEEN YOU AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS. CATCH HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THIRD-PARTY MATERIALS.
CATCH WILL HAVE NO LIABILITY FOR ANY ERRORS, MISTAKES, OR INACCURACIES IN YOUR DATA PROVIDED BY YOU TO CATCH. FURTHERMORE, YOU ACKNOWLEDGE AND AGREE THAT THE AVAILABILITY OF THE SERVICES IS DEPENDENT ON THIRD PARTIES FOR WHOM CATCH IS NOT RESPONSIBLE, INCLUDING, WITHOUT LIMITATION, INTERNET AND NETWORK SERVICE PROVIDERS. CATCH HAS NO LIABILITY FOR ERRORS IN, THE FAILURE 4902-4862-8372.4 OF, OR INACCESSIBILITY TO, THE SERVICES CAUSED IN WHOLE OR IN PART BY SUCH THIRD PARTY SERVICE PROVIDERS.
8. INDEMNIFICATION
8.01.CATCH Indemnification of You. CATCH will indemnify, defend, and hold You and Your Affiliates, and Your and their officers, directors, shareholders, employees, agents, and permitted successors and assigns, harmless from and against any and all third party allegations, claims, suits, investigations, or proceedings (“Claims”), including all losses, damages, judgments, fines, penalties, costs, and expenses (including reasonable attorney fees) in connection therewith, arising from or related to any allegation that the Services or Documentation infringe upon or misappropriate such third party’s U.S. intellectual property rights (an “IP Claim”).
- (i) CATCH Options. If an IP Claim is brought, or if CATCH determines in its sole discretion that an IP Claim is possible or likely, CATCH may, at its option: (i) modify or replace the Services or Documentation with a functionally equivalent, non-infringing version; or (ii) obtain for You the right to continue using the Services or Documentation. If CATCH determines that neither (i) or (ii) is commercially practicable, then CATCH may terminate this Agreement effective immediately, in which event You will immediately cease use of the Services. The remedies set forth in this Section state CATCH’s entire liability, and Your sole and exclusive remedy, for IP Claims.
- (ii) Exclusions. The indemnification obligation under Section 8.01 will not apply to any IP Claims arising from or related to: (i) modification of the Services or Documentation by, or at the request of, any party other than CATCH; (ii) Your Data or Third-Party Materials; (iii) the combination of the Services with any hardware, software, or other material not supplied by CATCH; (iv) the use of the Services in violation of this Agreement or not in accordance with the Documentation; or (v) use of the Services where such infringement or misappropriation could have been avoided by Your use of a subsequent version of the Services made available by CATCH, and CATCH had notified You of the need to use such updated Services.
8.02. Your Indemnification of CATCH. You will indemnify, defend and hold CATCH and its Affiliates, and its and their officers, directors, shareholders, employees, agents, and permitted successors and assigns, harmless from and against any and all third party Claims, including all losses, damages, judgments, fines, penalties, costs, and expenses (including reasonable attorney fees) in connection therewith, arising from or related to: (i) Your Data, including any processing of Your Data by CATCH in accordance with this Agreement; and (ii) Your gross negligence or willful misconduct, including any Authorized Users, in connection with this Agreement.
9. LIMITATION OF LIABILITY
9.01. Disclaimer of Consequential Damages. TO THE GREATEST EXTENT PERMITTED BY LAW, AND EXCEPT WITH RESPECT TO EACH PARTY’S INDEMNIFICATION OBLIGATIONS IN THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES, INCLUDING ITS AND THEIR OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, AND PERMITTED SUCCESSORS AND ASSIGNS, BE LIABLE TO THE OTHER PARTY, ITS AFFILIATES OR ANY THIRD PARTY FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR INDIRECT DAMAGES OR COSTS (INCLUDING LEGAL FEES AND EXPENSES), OR FOR THE USE OF, INABILITY TO USE, LOSS OF, INTERRUPTION, DELAY, OR RECOVERY OF ANY BREACH OF DATA OR SYSTEM SECURITY ARISING FROM OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE THEORY OF LIABILITY, WHETHER BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTORY, OR OTHERWISE, AND 4902-4862-8372.4 REGARDLESS OF WHETHER THE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.02. Limitation of Direct Damages. TO THE GREATEST EXTENT PERMITTED BY LAW, AND EXCEPT WITH RESPECT TO EACH PARTY’S INDEMNIFICATION OBLIGATIONS IN THIS AGREEMENT, IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF CATCH AND ITS AFFILIATES, INCLUDING ITS AND THEIR OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, AND PERMITTED SUCCESSORS AND ASSIGNS, FOR ALL DAMAGES AND LIABILITIES ARISING FROM OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION (INCLUDING FOR BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, RESCISSION, MISREPRESENTATION AND BREACH OF WARRANTY), EXCEED ONE THOUSAND DOLLARS ($1,000.00).
THE EXCLUSIONS AND LIMITATIONS SET FORTH IN THIS SECTION 9 (LIMITATION OF LIABILITY) WILL APPLY EVEN IF AN EXCLUSIVE REMEDY UNDER THIS AGREEMENT HAS FAILED OF ITS ESSENTIAL PURPOSE.
10. GENERAL TERMS
10.01. Force Majeure. Neither Party will be liable for any failure to perform its obligations under this Agreement if such failure is caused by circumstances or forces beyond the affected Party’s reasonable control (a “Force Majeure Event”). The affected Party will provide the non-affected Party with written notice of such Force Majeure Event and its anticipated duration. The non-affected Party may terminate this Agreement by providing written notice to the other Party if a Force Majeure Event continues substantially uninterrupted for a period of forty-five (45) days or more.
10.02. Relationship of Parties. The Parties to this Agreement are independent contractors. Nothing in this Agreement shall be construed to create any agency, partnership, joint venture, or any other joint enterprise between the Parties. Neither Party shall have the authority to contract for or bind the other Party.
10.03. Third Party Beneficiaries. This Agreement is for the sole benefit of the Parties hereto and their respective permitted successors and assigns. Nothing in this Agreement is intended to or shall confer on any other party any right, remedy, or benefit under this Agreement.
10.04. Assignment. You may not assign any of Your rights or obligations under this Agreement, in whole or in part, without the prior written consent of CATCH. Any assignment in violation of this Section 10.04 (Assignment) will be of no force or effect. Notwithstanding the foregoing, this Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
10.05. Utilizing CATCH Consultants. During the time that any licenses are in effect between CATCH and You, and/or during the time services are being performed by CATCH for Your benefit, and for a period of twelve (12) months thereafter, in the event You directly or indirectly hire, contract with, or otherwise utilize the services of any CATCH consultant, employee, agent or representative who was engaged in performance hereunder, You agree to pay CATCH a fee equal to one hundred percent (100%) of the last annualized salary of said person. Such fee will be payable within thirty (30) days following the date such person is hired or utilized by You.
10.06. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Nebraska, without giving effect to its conflict of law provisions. 4902-4862-8372.4
10.07. Arbitration. Any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or validity thereof, shall be finally resolved by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules then in effect. The arbitration shall be conducted by a single arbitrator mutually agreed upon by the Parties, or if the Parties cannot agree, appointed in accordance with such rules. The arbitrator shall not have the authority to award punitive, exemplary, or other damages in excess of compensatory damages, and each Party hereby irrevocably waives any right to recover such damages with respect to any dispute subject to arbitration under this Agreement. The place of arbitration shall be Omaha, Nebraska. The decision of the arbitrator shall be final and binding upon the Parties, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Each Party shall bear its own costs and attorneys’ fees in connection with any arbitration, and the Parties shall share equally the fees and expenses of the arbitrator and the American Arbitration Association.
10.08. Class Action Waiver. You agree to arbitration on an individual basis. In any dispute, NEITHER YOU NOR CATCH WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS IN COURT OR ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER, OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The arbitral tribunal may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding. The arbitral tribunal has no power to consider the enforceability of this class arbitration waiver, and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction.
10.09. Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 6 (Confidentiality) may cause the other Party irreparable harm for which monetary damages would not be an adequate remedy. In the event of such breach or threatened breach, the other Party may seek injunctive or other equitable relief from any court of competent jurisdiction, notwithstanding the provisions of Section 10.07 (Arbitration), without the need to post bond or prove actual damages (to the extent the same is not required by law). Such remedies are not exclusive and are without prejudice to any other rights or remedies such Party may have, whether at law, in equity, or otherwise.
10.10. Amendments. CATCH may amend this Agreement from time to time by posting an updated version at its website www.catchintelligence.com/privacy-policy or via its applications, and providing You notice of such amendment. Your continued access to or use of the Services after such notice constitutes Your acceptance of the amended terms. If You do not agree to the amended terms, You must stop using the Services and terminate this Agreement in accordance with Section 4 (Term and Termination).
10.11. Survival. Sections 4.05 (Effect of Termination), 5 (Ownership), 6 (Confidentiality), 8 (Indemnification), 9 (Limitation of Liability), 10 (General Terms), and all provisions of this Agreement which, by their terms and context, indicate the Parties intended them to survive, shall survive expiration or termination of this Agreement.
10.12. Waiver. No failure or delay by either Party to enforce any term of this Agreement or exercise any right hereunder will operate as a waiver of such Party’s right or of such term unless expressly set forth in a written agreement signed by the waiving Party. No waiver of any term of this Agreement or right hereunder will operate as a subsequent waiver of such term or right, or of any other term of this Agreement or other right hereunder.
10.13. Notice. All notices from CATCH to You under this Agreement may be delivered by email to the email address associated with Your account or by posting notice on CATCH’s website or applications. 4902-4862-8372.4 Notice shall be deemed given upon transmission if sent by email, or upon posting if posted to CATCH’s website or any application.
10.14. Severability. If any provision of this Agreement is invalid, illegal, or unenforceable as adjudged by a court of competent jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable any other provision, all of which shall remain in full force and effect to the greatest extent permitted by law. Upon a determination by a court of competent jurisdiction that a provision is invalid, illegal, or unenforceable, such provision shall be modified so as to give the fullest effect to the original terms to the extent permitted by law, or, in the event such modification is not permitted by law, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible.
10.15. Entire Agreement. This Agreement, including all documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement, and supersedes all prior and contemporaneous understandings and agreements, whether oral or written, with respect to the subject matter.
