Last Updated: May 19, 2023
This Cato Digital Customer Agreement (this “Agreement”) contains the terms and conditions that govern your access to and use of the Services (as defined below) and is an agreement between the applicable Cato Digital Contracting Party specified in Section 12 below (also referred to as “Cato Digital,” “we,” “us,” or “our”) and you or the entity you represent (“you” or “your”).
This Agreement takes effect upon acceptance, which occurs by selecting “sign in” or “I accept” or by checking the box presented with these terms, or when use of the Services begins (the “Effective Date”). If you are accepting on behalf of Customer, you represent and warrant that (i) you have full legal authority to bind Customer to this Agreement; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of Customer, to this Agreement. Unless otherwise defined herein, terms used but not defined within this Agreement are defined in the Cato Digital Contract Definitions.
“Account Country” is the country associated with your account. If you have provided a valid tax registration number for your account, then your Account Country is the country associated with your tax registration. If you have not provided a valid tax registration, then your Account Country is the country where your billing address is located, except if you have a credit card associated with your Cato Digital Account that is issued in a different country and your contact address is also in that country, then your Account Country is that different country.
“Account Information” means information about you that you provide to us in connection with the creation or administration of your Cato Digital Account. For example, Account Information includes names, usernames, phone numbers, email addresses and billing information associated with your Cato Digital Account.
“Cato Digital Contracting Party” means the party identified in the table below, based on your Account Country. If you change your Account Country to one identified to a different Cato Digital Contracting Party below, you agree that this Agreement is then assigned to the new Cato Digital Contracting Party under Section 12.1 without any further action required by either party.
| Account Country | Cato Digital Contracting Party | Mailing Address |
|---|---|---|
| USA | Cato Digital, Inc. | 1521 Concord Pike, Suite 301 |
| Wilmington, DE 19803 |
“End User” means any individual or entity that directly or indirectly through another user (a) accesses or uses Your Content, or (b) otherwise accesses or uses the Services under your account. The term “End User” does not include individuals or entities when they are accessing or using the Services or any Content under their own Cato Digital account, rather than under your account.
“Governing Laws” and “Governing Courts” mean, for each Cato Digital Contracting Party, the laws and courts set forth in the following table:
| Cato Digital Contracting Party | Governing Laws | Governing Courts |
|---|---|---|
| Cato Digital, Inc. | United States | California |
“Indirect Taxes” means applicable taxes and duties, including, without limitation, VAT, service tax, GST, excise taxes, sales and transactions taxes, and gross receipts tax.
“Losses” means any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees).
“Suggestions” means all suggested improvements to the Services or Cato Digital Content that you provide to us.
“Term” means the term of this Agreement described in Section 6.1.
“Termination Date” means the effective date of termination provided in a notice from one party to the other in accordance with Section 6.
Generally. We may suspend your or any End User’s right to access or use any portion or all of the Services immediately if we determine:
(a) your or an End User’s use of the Services (i) poses a security risk to the Services or any third party, (ii) could adversely impact our systems, the Services or the systems or Content of any other Cato Digital customer, (iii) could subject us, our affiliates, or any third party to liability, or (iv) could be fraudulent;
(b) you are, or any End User is, in breach of this Agreement;
(c) you are in breach of your payment obligations under Section 4; or
(d) you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.
(e) that your use of the Services or your Content violates any criminal statute of the United States or any jurisdiction therein.
(f) we must comply with the laws or requests of a governmental entity.
We will provide notice of this suspension as soon as reasonably possible.
Effect of Suspension. If we suspend your right to access or use any portion or all of the Services:
(a) you remain responsible for all fees and charges you incur during the period of suspension; and
(b) you will not be entitled to any service credits under the Service Level Agreements for any period of suspension.
Term. The term of this Agreement will commence on the Effective Date and will remain in effect until terminated under this Section 6. Any notice of termination of this Agreement by either party to the other must include a Termination Date that complies with the notice periods in Section 6.2.
Termination.
Effect of Termination.
Generally. Upon the Termination Date:
Post-Termination. If we terminate your use of the Services pursuant to Section 6.2.2, during the 30 days following the Termination Date:
For any use of the Services after the Termination Date, the terms of this Agreement will apply and you will pay the applicable fees at the rates under Section 4.
General. You, your subsidiaries, assigns, employees, and successors, will defend, indemnify, and hold harmless Cato Digital, our affiliates, assigns, subsidiaries, successors, employees, and licensors, and each of their respective employees, officers, directors, and representatives from and against any Losses arising out of or relating to any third-party claim concerning: (a) your use of the Services (including any activities under your Cato Digital Account and use by your employees and personnel); (b) or any End Users’ use of the Services; (c) breach of this Agreement or violation of applicable law by you, End Users or Your Content; or (d) a dispute between you and any End User. You will reimburse us for reasonable attorneys’ fees, as well as our employees’ and contractors’ time and materials spent responding to any third party subpoena or other compulsory legal order or process associated with third party claims described above at our then-current hourly rates.
Intellectual Property.
(a) Subject to the limitations in this Section 8, you, your subsidiaries, assigns, employees, officers, directors, and successors shall hold harmless and defend Cato Digital against any third-party claim alleging that (1) your Content or use of the Services infringes or misappropriates any third party’s intellectual property rights; or (2) that any End User’s use of Your Content infringes or misappropriates any third party’s intellectual property rights. In the event of adverse judgment against either Party, you shall be liable to pay the full amount of any damages or settlement.
(b) Cato Digital will have no obligations or liability arising from your or any End User’s use of the Services which may infringe or misappropriate any third party’s intellectual property rights.
(c) The remedies provided in this Section 8.2 are the sole and exclusive remedies for any third-party claims of infringement or misappropriation of intellectual property rights by your use of the Services or by Your Content.
(d) Cato Digital may suspend your use of the Services in accordance with Section 5.
Process. The obligations under this Section 8 will apply only if (a) Cato Digital provides you with prompt written notice of the claim; (b) permits you to control the defense and settlement of the claim; and (c) reasonably cooperates with you (at your expense) in the defense and settlement of the claim. In no event will you or Cato Digital agree to any settlement of any claim that involves any commitment, other than the payment of money, without the written consent of the other party.
The obligations to release, defend, indemnify, and hold Cat Digital harmless contained in this Section 8 shall apply even if caused, in whole or in part, by the negligence (whether joint, sole, or concurrent), gross negligence, preexisting conditions, strict liability, and contractual liability of Cato Digital.
Injunctive Relief. You agree that if you breach any of the covenants contained herein, the Cato Digital shall be entitled, as a matter of right, to obtain relief in any court of competent jurisdiction enjoining such breach or violation, in addition to all other remedies otherwise available, subject to Section 13.6. You shall reimburse Cato Digital for all legal fees, court costs and disbursements incurred in enforcing any portion of this Agreement.
THE SERVICES AND CATO DIGITAL CONTENT ARE PROVIDED “AS IS.” EXCEPT TO THE EXTENT PROHIBITED BY LAW, OR TO THE EXTENT ANY STATUTORY RIGHTS APPLY THAT CANNOT BE EXCLUDED, LIMITED OR WAIVED, WE AND OUR AFFILIATES AND LICENSORS (A) MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE SERVICES OR Cato Digital CONTENT OR THE THIRD-PARTY CONTENT, AND (B) DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED OR EXPRESS WARRANTIES (I) OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, (II) ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE, (III) THAT THE SERVICES OR CATO DIGITAL CONTENT OR THIRD-PARTY CONTENT WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, AND (IV) THAT ANY CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR ALTERED.
WE AND OUR AFFILIATES AND LICENSORS WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, REVENUES, CUSTOMERS, OPPORTUNITIES, GOODWILL, USE, OR DATA), EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) YOUR INABILITY TO USE THE SERVICES, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICES OR Cato Digital CONTENT, (II) OUR DISCONTINUATION OF ANY OR ALL OF THE SERVICES OR Cato Digital CONTENT, OR, (III) WITHOUT LIMITING ANY OBLIGATIONS UNDER THE SERVICE LEVEL AGREEMENTS, ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICES FOR ANY REASON; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICES OR Cato Digital CONTENT; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF YOUR CONTENT OR OTHER DATA. IN ANY CASE, EXCEPT FOR PAYMENT OBLIGATIONS UNDER SECTION 8.2, OUR AND OUR AFFILIATES’ AND LICENSORS’ AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNT YOU ACTUALLY PAY US UNDER THIS AGREEMENT FOR THE SERVICE THAT GAVE RISE TO THE CLAIM DURING THE 12 MONTHS BEFORE THE LIABILITY AROSE. THE LIMITATIONS IN THIS SECTION 10 APPLY ONLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
We may modify this Agreement (including any Policies) at any time by posting a revised version on the Cato Digital Site or by otherwise notifying you in accordance with Section 12.10. The modified terms will become effective upon posting or, if we notify you by email, as stated in the email message. By continuing to use the Services or Cato Digital Content after the effective date of any modifications to this Agreement, you agree to be bound by the modified terms. It is your responsibility to check the Cato Digital Site regularly for modifications to this Agreement. We last modified this Agreement on the date listed at the beginning of this Agreement. You may not modify this Agreement including any Policies) at any time.
Assignment. You will not assign or otherwise transfer this Agreement or any of your rights and obligations under this Agreement, without our prior written consent. Any assignment or transfer in violation of this Section 12.1 will be void. We may assign this Agreement without your consent (a) in connection with a merger, acquisition or sale of all or substantially all of our assets, or (b) to any affiliate or as part of a corporate reorganization; and effective upon such assignment, the assignee is deemed substituted for Cato Digital as a party to this Agreement and Cato Digital is fully released from all of its obligations and duties to perform under this Agreement. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the parties and their respective permitted successors and assigns.
Entire Agreement. This Agreement incorporates the Policies by reference and is the entire agreement between you and us regarding the subject matter of this Agreement. This Agreement supersedes all prior or contemporaneous representations, understandings, agreements, or communications between you and us, whether written or verbal, regarding the subject matter of this Agreement (but does not supersede prior commitments to purchase Services such as Cato Digital EC2 Reserved Instances). We will not be bound by, and specifically object to, any term, condition or other provision that is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) including for example, any term, condition or other provision (a) submitted by you in any order, receipt, acceptance, confirmation, correspondence or other document, (b) related to any online registration, response to any Request for Bid, Request for Proposal, Request for Information, or other questionnaire, or (c) related to any invoicing process that you submit or require us to complete. If the terms of this document are inconsistent with the terms contained in any Policy, the terms contained in this document will control, except that the Service Terms will control over this document. This Section 12.2 is subject to the provisions of the Conflict of Terms Section 12.3.
Conflict of Terms. In case of a conflict among this Agreement, any Service Order Forms, or an agreement signed between you and the Cato Digital sales team related to the use of our Services, the following order of precedence will govern, with lower numbers governing over higher ones: (1) the agreement executed between you and the Cato Digital sales team (if such an agreement exists) related to the use of our Services; (2) any Service Order Form, with more recent Service Order Forms taking precedence over later ones (if any such Service Order Forms exists); (3) the main body of this Customer Agreement. No Service Order Form or other attachment incorporated into this Agreement, including without limitation those executed after this main body, will be construed to amend this main body or any earlier attachment.
Force Majeure. We and our affiliates will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond our reasonable control, including acts of God, labor disputes or other industrial disturbances, electrical or power outages, utilities or other telecommunications failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
Governing Law. The laws of the State of California, without reference to conflict of law rules, govern this Agreement and any dispute of any sort that might arise between you and us. The United Nations Convention for the International Sale of Goods does not apply to this Agreement.
Disputes. Any dispute or claim relating in any way to your use of the Services, or to any products or services sold or distributed by Cato Digital will be adjudicated in the State of California in a Court of competent jurisdiction. You consent to the exclusive jurisdiction and venue in the Governing Courts, subject to the additional provisions below.
(a) If the applicable Cato Digital Contracting Party is Cato Digital Services, Inc., the parties agree that the provisions of this Section 12.5(a) will apply. Disputes will be resolved by binding arbitration, rather than in court, except that either party may elect to proceed in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law apply to this Agreement. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Agreement as a court would. Before you may begin an arbitration proceeding, you must send a letter notifying us of your intent to pursue arbitration and describing your claim to our registered agent Corporation Service Company, {address}. The arbitration will be conducted by the American Arbitration Association (AAA) under its commercial rules, which are available at www.adr.org or by calling 1-800-778-7879. Payment of filing, administration and arbitrator fees will be governed by the AAA commercial fee schedule. We and you agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. We and you further agree that the underlying award in arbitration may be appealed pursuant to the AAA’s Optional Appellate Arbitration Rules. If for any reason a claim proceeds in court rather than in arbitration we and you waive any right to a jury trial. Notwithstanding the foregoing we and you both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
Trade Compliance. In connection with this Agreement, each party will comply with all applicable import, re-import, sanctions, anti-boycott, export, and re-export control laws and regulations, including all such laws and regulations that apply to a U.S. company, such as the Export Administration Regulations, the International Traffic in Arms Regulations, and economic sanctions programs implemented by the Office of Foreign Assets Control. For clarity, you are solely responsible for compliance related to the manner in which you choose to use the Services or Cato Digital Content, including your transfer and processing of Your Content, the provision of Your Content to End Users, and the Cato Digital facility in which any of the foregoing occur. You represent and warrant that you and your financial institutions, or any party that owns or controls you or your financial institutions, are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties, including but not limited to the lists maintained by the United Nations Security Council, the U.S. Government (e.g., the Specially Designated Nationals List and Foreign Sanctions Evaders List of the U.S. Department of Treasury, and the Entity List of the U.S. Department of Commerce), the European Union or its Member States, or other applicable government authority.
Independent Contractors; Non-Exclusive Rights. We and you are independent contractors, and this Agreement will not be construed to create a partnership, joint venture, agency, or employment relationship. Neither party, nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other. Both parties reserve the right (a) to develop or have developed for it products, services, concepts, systems, or techniques that are similar to or compete with the products, services, concepts, systems, or techniques developed or contemplated by the other party, and (b) to assist third party developers or systems integrators who may offer products or services which compete with the other party’s products or services.
Language. All communications and notices made or given pursuant to this Agreement must be in the English language. If we provide a translation of the English language version of this Agreement, the English language version of the Agreement will control if there is any conflict.
Confidentiality and Publicity. You may use Cato Digital Confidential Information only in connection with your use of the Services or Cato Digital Content as permitted under this Agreement. You will not disclose Cato Digital Confidential Information during the Term or at any time during the 5-year period following the end of the Term. You will take all reasonable measures to avoid disclosure, dissemination or unauthorized use of Cato Digital Confidential Information, including, at a minimum, those measures you take to protect your own confidential information of a similar nature. You will not issue any press release or make any other public communication with respect to this Agreement or your use of the Services or Cato Digital Content.
Notice.
(a) To You. We may provide any notice to you under this Agreement by: (i) posting a notice on the Cato Digital Site; or (ii) sending a message to the email address then associated with your account. Notices we provide by posting on the Cato Digital Site will be effective upon posting and notices we provide by email will be effective when we send the email. It is your responsibility to keep your email address current. You will be deemed to have received any email sent to the email address then associated with your account when we send the email, whether or not you actually receive the email.
(b) To Us. To give us notice under this Agreement, you must contact Cato Digital by facsimile transmission or personal delivery, overnight courier or registered or certified mail to the facsimile number or mailing address, as applicable, listed for the applicable Cato Digital Contracting Party in Section 1. We may update the facsimile number or address for notices to us by posting a notice on the Cato Digital Site. Notices provided by personal delivery will be effective immediately. Notices provided by facsimile transmission or overnight courier will be effective one business day after they are sent. Notices provided registered or certified mail will be effective three business days after they are sent.
No Third-Party Beneficiaries. Except as set forth in Section 8, this Agreement does not create any third-party beneficiary rights in any individual or entity that is not a party to this Agreement. No Waivers. The failure by us to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit our right to enforce such provision at a later time. All waivers by us must be in writing to be effective.
Severability. If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to effect and intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement but the rest of the Agreement will remain in full force and effect.
