Katalon Terms

This Privacy Policy only governs information you provide to Katalon, Inc. (“we” or “us”) via katalon.com (the “Site”) as well as the Katalon Studio, Katalon TestOps, TestCloud, and Katalon Recorder offerings (“Offerings”) available from the Site. However, this Privacy Policy does not govern other Web sites or any other data collection, disclosure, or usage practices, off-line or otherwise.

Effective date: May 17th, 2022

This is a summary of the personal information that Katalon collects in connection with the Site and Offerings. The rest of this Privacy Policy provides further detail.

The categories of personal information we collect:

• Contact information (such as name, email, address)
• Billing information
• Internet activity (such as pages viewed on our Site)
• Computer/device information (such as IP address or geolocation information)
• Professional or employment related information, and
• Inferences from the foregoing

The categories of sources of the personal information we collect:

• Registrations, sign-ups, forms and other features of the Site
• Cookies and other passive data collection technologies from our Site
• Business cards and other offline contact information
• Third party partners and online sources

The business or commercial purposes for which we collect personal information:

• Providing you services, processing your payments and servicing your account
• Marketing our products services to you
• Security and maintenance
• Analyzing and improving our services, systems and business and other quality control
• Complying with law and legal process
• Operating the Site and our Offerings and services, including short term transient uses for your interaction with the site
• Verifying your identity if you make information requests from us

The categories of third parties with whom we share personal information:

• Providers of hosting and other technology services for the Site and Offerings
• Providers of billing or credit card services to Katalon
• Other third party partners or providers of data, technology or services to Katalon and its customers

The categories of personal information we share with third parties:

• Contact information (such as name, email, address)
• Billing information
• Internet activity (such as pages viewed on our Site)
• Computer/device information (such as IP address or geolocation information)
• Professional or employment related information, and
• Inferences from the foregoing

Katalon does not sell personal information it collects to third parties.

Our Site:
We collect information from you as part of certain features on our Site, such as when you register for our Offerings. The information we collect may include your name, email address, company name, phone number. Your IP address, page views and actions on our Site are also collected. We may use the contact information you input to send you or your organization support information, product and service announcements, and other business communications, to service our Site, and as necessary to perform services for you or your organization once you or your organization becomes a customer. Also, we may share this information with our business partners and corporate affiliates for their use in the manner described above.

Katalon Store:
In addition to the information described above, our third party payment processor may collect credit card and other payment information from you via the Katalon Store. In addition to the uses described above, that credit card and other information to complete transactions you conduct through the Katalon Store. We may share information you provide via the Katalon Store to the third party whose Offering you have obtained for them to use in the same manner as described above, including as necessary for them to provide you service and support regarding the Offering.

Our Offerings:
Our Offerings may collect error and execution logs and other information about your use of the Offering. Use of that information is further detailed in the agreement you entered into with us for the particular Offering or the relevant privacy policy pertaining to that Offering. Please note that some Offerings available at the store are provided by third parties (“Third Party Offerings”). The third party provider should be treating your personal information in accordance with applicable law. However, Katalon is not responsible for Third Party Offerings and the privacy and security practices of third party providers. Please read the privacy policies and other terms applicable to the Third Party Offerings. If you experience an issue with use of your information regarding a Third Party Offering, please contact us below.

Tools employed on our Site may gather your IP address when you access the Site. We use IP addresses to analyze trends, administer, maintain and improve the Site, and gather broad geolocation information for aggregate use. Your IP address may indicate the city from which you are accessing the Internet, but we do not use your IP address in a manner linked to any other of your personally identifiable information.

A cookie is a small file placed on your computer that stores information. Overall, cookies help us provide you with a better Site. We may use cookies to verify your browser and to maintain your session and we may also use cookies of third party partners, such as Google, which may analyze our Site use and provide advertisers with the ability to better tailor ads to your preferences. More information on our use of Google is located below. You can choose to accept or decline cookies. Most web browsers automatically accept cookies, but you can usually modify your browser setting to decline cookies if you prefer. This may prevent you from taking full advantage of the Site. If you opt out of using cookies, we may employ a cookie only to help us remember this preference.

If you would like further information on the cookies we employ, please contact us via the email address provided below. Below are some online resources that provide some helpful information on how change your cookie preferences:

https://www.youronlinechoices.eu (if you are based in the EU)

https://www.aboutads.info/choices/ (if you are based in the US)

Google Analytics is a web analytics service provided by Google. Google Analytics may use cookies or other means to help us analyze how users use the Site. The information generated by the cookies about your use of the Site (including your IP address) will be transmitted to and stored by Google on servers in the United States. Google will use this information for the purpose of evaluating your use of the Site, compiling reports on Site activity and providing other services relating to website activity and internet usage. Google may use the data collected to contextualize and personalize the ads of its own advertising network. Google may also transfer this information to third parties where required to do so by law, or where such third parties process the information on Google’s behalf. By using this Site, you consent to the processing of data about you by Google in the manner and for the purposes set out above. You can also opt out of Google’s advertising tracking cookie (https://policies.google.com/technologies/ads) or use a browser plugin to opt out of all Google Analytics tracking software (https://tools.google.com/dlpage/gaoptout?hl=en). Find more information about Google’s privacy practices here: http://www.google.com/intl/en/policies/.

Our intent is only to use your information in compliance with applicable law, and that includes giving you choice on how and if your personal information is used. We don’t discriminate against you because you choose to exercise your rights, such as to request removal of or changes to your information. You may have options about how the personal information that you provide us may be used. For example, you may unsubscribe from emails we send via a link or other method in those emails. Some of the purposes for which we use your personal information are described in this Privacy Policy. Some of the uses of your information are necessary for the service we provide through the Site, for the Offerings, or for the reason you provided us with the information, and if you don’t want your information used in certain ways, it may prevent you from using the service we provide on our Site or from receiving the Offerings.

We are committed to ensuring that your personal information is secure. We maintain or use third parties to maintain physical, electronic and managerial procedures designed to safeguard the information we collect through the Site. However, no information can be absolutely secure, and we can’t guarantee the security of any information that is the subject of this Privacy Policy or any information that is submitted to us via the Internet.

You may request that we disclose to you the personal information we collect from you through the Site and how we use and disclose that information. We will let you update your personal information that you have provided to us through the methods available on the Site. You may also contact us to change update or remove your information via the email address below. We will also take steps to make sure that any updates or removal requests that you provide are processed in a timely and complete manner. Where required by law, we will take reasonable steps to verify a user’s identity before granting access, changes or deletion of that user’s personal information. For example, we may require you to provide your email address or similar information to verify that you are the person you claim to be. When we do this, we delete the information provided if you do not timely respond to the request for verification. If you request that we remove your personal information, that may impact your ability to fully access the Site or receive our Offerings.

Katalon uses third parties in a variety of ways and may share personal information with them in connection with business. We have agreements with these companies that contain protections regarding use of personal information. Third parties may operate or host the Site or the computers that operate the Site, store or process data for us, provide services related to the information requests that you have submitted or communications we provide to you. Some of these third parties that we use include the following: Hubspot, Google, Woopra, Segment, Stripe and Mailchimp. For example, we use Segment and Woopra to store and analyze contact information that you provide to us. We do not sell personally identifiable information collected via the Site to third party marketers. We do have third party resellers, sales agents and partners, and we may share contact information with them for them to provide sales, support, implementation and related services in connection with our Offerings.

Katalon is located in the United States and Vietnam, so by providing us information, you are consenting to its transfer to us in those countries. Information that we collect from you may be transferred to, and stored at, a destination outside the United States, European Economic Area (“EEA”) or the country in which you are located. The personnel who use your information as part of the practices described in this Privacy Policy may also be located outside the United States, EEA or the country in which you are located. By submitting your personal information, you agree to this transfer, storing or processing.

In addition to the uses described above in this Privacy Policy, we may use and disclose information, including personally identifiable information, submitted by you and/or collected by the Site or otherwise subject to this Privacy Policy, to the extent reasonably necessary for any one or more of the following purposes: (a) to correct technical problems and malfunctions in how we provide our Site to you and to technically process your information; (b) to protect the security and integrity of the Site; (c) to protect our rights and property and the rights and property of others; (d) to respond to claims that your information violates the rights or interests of third parties; (e) to comply with applicable law; (f) to respond to judicial process; and (g) to the extent permitted under other provisions of law, to provide information to law enforcement agencies and for an investigation on a matter related to public safety, as applicable.

You understand and agree that technical processing of your information is and may be required (a) to send and receive messages regarding your use of the Site; (b) to conform to the technical requirements of connecting networks; (c) to conform to the limitations of our Site; and (d) to conform to other, similar technical requirements.

We keep your personal information only as long as we need it for the purposes described in this Privacy Policy. In general, if we have no other legitimate reason to continue using your personal information and you withdraw your permission, we will delete it. However, when you unsubscribe from marketing communications, we may keep your email address to ensure that we do not send you any more marketing communications.

As noted above, we may periodically update this Privacy Policy. For example, we may update this policy in order to describe how new Web features may affect our use of your information and to let you know of new controls and features that we may provide you. We will not apply changes to this policy retroactively to information we have previously collected.

All inquiries regarding this Privacy Policy, your rights under it, or use, removal or updating your information, should be directed to business@katalon.com.

This Data Processing Addendum (“DPA”) is incorporated by reference into Katalon’s Customer Terms of Service available at https://katalon.com/terms#customer-terms-of-use or other agreement governing the use of Katalon’s services (“Agreement”) entered by and between you, the Customer (as defined in the Agreement) (collectively, “you”, “your”, “Customer”), and Katalon, Inc. (“Katalon”, “us”, “we”, “our”) to reflect the parties’ agreement with regard to the processing of Personal Data subject to Privacy Law by Katalon solely on behalf of the Customer.

By using the Services, Customer accepts this DPA and you represent and warrant that you have full authority to bind the Customer to this DPA. If you cannot, or do not agree to, comply with and be bound by this DPA, or do not have authority to bind the Customer or any other entity, please do not provide Personal Data to us.

Certain capitalized terms are defined below, and others are defined in the Agreement, contextually in this DPA, and otherwise as defined by Privacy Law (including with respect to similar nomenclature).

“Order” has the meaning given to it in the Agreement.

“Personal Data” means Your Data (as defined in the Agreement) and any other information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, to or with an identified or identifiable natural person or consumer, which is processed by Katalon solely on behalf of Customer under this DPA and the Agreement.

“Privacy Law” means, as applicable, the laws, regulations or other legal requirements relating to data protection, privacy, security or otherwise with respect to the use, collection, retention, storage, security, disclosure, transfer, disposal, and other processing of Personal Data.

“Services” means the Cloud Products (as defined in the Agreement) and any other services provided to Customer by Katalon under the Agreement.

Roles of the Parties. The parties acknowledge and agree that with regard to the processing of Personal Data, Customer may act either as a controller or processor and Katalon is a processor. Customer appoints Katalon as a processor to process Personal Data (a) in accordance with Customer’s instructions as set forth in the Agreement and this DPA and as otherwise necessary to provide the Services to Customer, (b) as necessary to comply with applicable laws including Privacy Law, and (c) additional instructions as otherwise agreed-upon in writing by the Parties, including any additional fees for fulfilling additional instructions. Customer represents that its instructions will comply with Privacy Law, and acknowledges that Katalon is neither responsible for determining which laws are applicable to Customer’s business nor whether Katalon’s provision of the Services meets or will meet the requirements of such applicable laws. Katalon will inform Customer if it reasonably believes that any Customer instructions violate applicable laws including Privacy Law.

Katalon Affiliates and Personnel. Katalon will ensure that any affiliates or employees it authorizes to process Personal Data are subject to non-disclosure and confidentiality obligations consistent with Katalon’s confidentiality obligations in the Agreement and this DPA.

Third Party Requests. In the event any third-party request is made directly to Katalon in connection with Personal Data, Katalon will promptly inform Customer to the extent legally permitted. Katalon will not respond to any such request without Customer’s prior consent, except as legally required.

Authorization for Onward Sub-processing. Customer provides a general authorization for Katalon to engage onward sub-processors that is conditioned on the following requirements: (a) Katalon will restrict the onward sub-processor’s access to Personal Data only to what is strictly necessary to provide the Services, and Katalon will prohibit the sub-processor from processing the Personal Data for any other purpose; (b) Katalon agrees to impose contractual data protection obligations, including appropriate technical and organizational measures to protect Personal Data, on any sub-processor it appoints that requires such sub-processor to protect Personal Data as required by Privacy Law; and (c) Katalon will remain liable for any breach of this DPA that is caused by an act, error, or omission of its sub-processors as if such breach is attributable to Katalon itself, subject to the terms on liability and indemnity under the Agreement.

Notifications Regarding Sub-processors. Customer consents to Katalon engaging third party sub-processors to process Personal Data within the Services as provided herein, provided that Katalon notify Customer of new sub-processors (including via email). Katalon will provide such notice no less than thirty (30) days prior to the addition of any sub-processor (the “Notice Period”). Customer may object to the addition of a sub-processor during the Notice Period, provided such objection is in writing and based on reasonable grounds relating to data protection. In such event, the Parties agree to discuss the objection in good faith, and if the Parties cannot reach a resolution within thirty (30) days of Customer’s written objection, Customer may discontinue use of the affected Services by providing written notice to Katalon, without prejudice to any fees incurred by Customer prior to discontinuation of the affected Services. If no objection is received during the Notice Period, the Customer is deemed to have authorized the new sub-processor.

Data Subject Rights. Katalon will endeavor to provide Customer with means to delete, obtain a copy of, or restrict use of Personal Data. Customer may use this functionality to comply with Privacy Law in response to data subject requests. To the extent Customer is unable to fulfill a data subject request accordingly, Katalon will, upon request, provide reasonable additional and timely assistance to assist Customer in complying with Privacy Law in response to the data subject request.

Impact Assessments and Audits. Katalon will provide reasonable cooperation to Customer in connection with any data protection impact assessment or similar undertaking (at Customer’s expense only if such reasonable cooperation will require Katalon to assign significant resources to that effort) or cooperation with regulatory authorities that may be required under Privacy Law.

Deletion of Personal Data. Katalon will delete or return to Customer any Personal Data stored upon request, subject to any legal retention obligations. Katalon may delete all Personal Data upon expiration or termination of the Agreement and/or this DPA, unless otherwise agreed-upon in writing. Personal Data stored in backup and disaster recovery repositories may be retained for a longer duration provided that it remains subject to this DPA until deleted.

Security. Katalon has implemented and will maintain technical and organizational security measures as set forth in the Agreement and this DPA. Katalon will share more detailed descriptions of such security measures with Customer from time-to-time.

Cross Border Data Transfers. To the extent Customer’s use of the Services requires an onward transfer mechanism to lawfully transfer Personal Data from one jurisdiction to another, the transfer of Personal Data will be subject to a single transfer mechanism in accordance with the following order of precedence:

• One-Time Transfers. The Parties may expressly agree in writing (including via email) that a specified one-time transfer of Personal Data will be subject to a designated transfer mechanism (e.g., consent or another derogation);
• EU Standard Contractual Clauses. The Parties agree that the Standard Contractual Clauses approved by the European Commission in decision 2021/914 and as amended or replaced thereafter (“EU SCCs”) will apply to Personal Data that is transferred via the Services from the EEA/EU or Switzerland, either directly or via onward transfer, to any country or recipient outside the EEA that is: (a) not recognized by the European Commission (or, in the case of transfers from Switzerland, the competent authority for Switzerland) as providing an adequate level of protection for Personal Data. For data transfers from the EEA that are subject to the EU SCCs:
  (1) In Clause 7 of the EU SCCs, the optional docking clause may be exercised by Customer’s legal affiliates; In Clause 9 of the EU SCCs, Option 2 will apply and the time period for prior written notice of sub-processor changes will be as set forth in this DPA; In Clause 11 of the EU SCCs, the optional language will not apply; In Clause 17 (Option 1), the EU SCCs will be governed by Irish law; In Clause 18(b) of the EU SCCs, disputes will be resolved before the courts of Ireland.
  (2) In Annex I, Part A of the EU SCCs: Customer is the data exporter, and its contact is identified on the applicable Order of the Agreement. By entering into the Agreement, data exporter is deemed to have signed these EU SCCs incorporated herein, including their Annexes, as of the effective date of the Agreement. Katalon is the data importer, and its contact is identified on the applicable Order of the Agreement. By entering into the Agreement, data importer is deemed to have signed these EU SCCs incorporated herein, including their Annexes, as of the effective date of the Agreement.
  (3) In Annex I, Part B of the EU SCCs: The categories of data subjects are individuals captured in a recording or other form of data processed by Katalon as Personal Data on behalf of Customer; no sensitive data is anticipated to be processed by Katalon hereunder; the frequency of the transfer is a continuous basis for the duration of the Agreement; the nature and purpose of the processing is to provide the Services for Customer as contemplated in the applicable Order of the Agreement; the period for which the Personal Data will be retained is primarily the duration of the Agreement. For transfers to sub-processors, the subject matter, nature, and duration of the processing will be included in the list of its sub-processors referenced in, and made available pursuant to, the DPA.
  (4) In Annex I, Part C of the EU SCCs: The Irish Data Protection Commission will be the competent supervisory authority unless otherwise agreed upon by the parties in writing. Security Measures in support of Annex II of the EU SCCs are described in the Agreement and DPA, and will be supplemented upon Customer’s request.
• UK International Data Transfer Addendum. The Parties agree that the EU SCCs supplemented by the International Data Transfer Addendum to the EU Commission Standard Contractual Clauses issued by the UK Information Commissioner, Version B1.0, in force 21 March 2022 and as amended or replaced thereafter (“UK IDTA”) will apply to Personal Data that is transferred via the Services from the UK, either directly or via onward transfer, to any country or recipient outside of the UK that is not recognized by the competent UK regulatory authority or governmental body for the UK as providing an adequate level of protection for Personal Data. For data transfers from the UK that are subject to the UK IDTA, the UK IDTA is hereby entered into, incorporated by reference in this DPA, and completed as follows:
  (1) In Table 1 of the UK IDTA, the Parties’ details and key contact information is located in the applicable Order of the Agreement.
  (2) In Table 2 of the UK IDTA, information about the version of the approved EU SCCs is provided herein.
  (3) In Table 3 of the UK IDTA: The list of Parties is located in the applicable Order of the Agreement; the description of the transfer is set forth in regard to the EU SCCs above; Security Measures in support of Annex II of the EU SCCs are described in the Agreement and DPA, and will be supplemented upon Customer’s request; The list of sub-processors is referenced in, and made available pursuant to, the DPA.
  (4) In Table 4 of the UK IDTA, both the importer and the exporter may end the UK IDTA in accordance with the terms of the UK IDTA.
• Transfers From Other Jurisdictions. Except as otherwise addressed under the DPA, any jurisdiction requiring a transfer mechanism not otherwise provided for under this DPA or the Agreement will be subject to EU SCCs as provided above.

Conflicts. To the extent there is any conflict or inconsistency between the (a) EU SCCs or UK IDTA and (b) any other terms in the Agreement or this DPA, the provisions of the EU SCCs or UK IDTA, as applicable, will prevail. Notwithstanding the foregoing, any liability or indemnity claims brought in connection with this DPA (with the EU SCCs and UK IDTA) will be subject to the limitations of liability and other liability and indemnity terms and disclaimers set forth in the Agreement except to the extent prohibited by applicable law.

Modifications. Each party may by at least forty-five (45) calendar days prior written notice to the other party, request in writing any variations to this DPA if they are required as a result of any change in applicable Privacy Law to allow the processing of Persona Data to be made (or continue to be made) without breach of such Privacy Law. Pursuant to such notice the parties shall use commercially reasonable efforts to accommodate such required modification, and negotiate in good faith with a view to agreeing and implementing those or alternative variations designed to address the requirements under applicable Privacy Law as identified in Customer’s or processor’s notice as soon as is reasonably practicable. In addition, the processor may amend this DPA from time to time without notice, provided that such changes are not adverse in any material aspect with respect to the Customer’s rights or processor’s obligations (i.e. error and typos fixing, making technical adjustments or for any other reasons as the processor deems necessary). For clarity, if the processor makes any material adverse change to Customer’s rights or the processor’s obligations, the processor will notify Customer by posting an announcement on the site, via the Service and/or by sending an email.

Welcome to the Katalon Offerings! Katalon, Inc. and/or its Affiliates (“Katalon”, “we”, “us” or “our”) provide the Offerings subject to the following conditions.

Please review these Customer Terms of Use (these “Terms”) carefully. These Terms are between you and the Katalon entity that owns or operates the Offering that you are using or accessing. “You” or “your” means, unless otherwise indicated, your employer or another entity you represent, as applicable. You hereby represent that (a) you have full legal authority to bind your employer or such entity (as applicable) to these Terms; and (b) after reading and understanding these Terms, you agree to these Terms on behalf of your employer or the respective entity (as applicable), and these Terms shall bind your employer or such entity (as the case may be). PLEASE NOTE THAT YOU ARE DEEMED AS AN AUTHORIZED REPRESENTATIVE OF YOUR EMPLOYER OR AN ENTITY (AS APPLICABLE): (I) IF YOU ARE USING YOUR EMPLOYER OR AN ENTITY’S EMAIL ADDRESS IN REGISTERING AN ACCOUNT TO USE THE OFFERINGS; OR (II) IF YOU ARE AN ADMIN (AS DEFINED BELOW).

A glossary of defined terms is included at the end of these Terms.

Account. You must register for an account with us in order to place Orders or access and use the Offerings. When creating a User Account or when you are added to a User Account, you: (a) agree to provide us with accurate, complete, and current registration information for all Users; (b) acknowledge that it is your and each User’s responsibility to ensure that such User’s password remains confidential and secure; (c) agree that you are fully responsible for all activities that occur under User Accounts; and (d) undertake to promptly notify us in writing if you become aware of any unauthorized access or use of User Accounts and/or any breach of these Terms. We may assume that any communications we receive under User Accounts have been made by you. You will be solely responsible for unauthorized usage of the User Account by either you or any other User or third party on your behalf.

Administration. The Offerings allow you to specify Users, including Admins. An Admin may have the ability to make Orders or enable features, products or services (which may incur fees); create, de-provision, monitor or modify User Accounts, and set User usage permissions or subscription renewal options; integrate or disable integration with Plugins and third-party products or services; and manage Your Data. You are responsible for whom you allow to become Admins and any actions they take, including as described above. You agree that our responsibilities do not extend to the internal management or administration of the Offerings to you.

Users. Only Users may access and use the Offerings. Some Offerings may allow you to designate different types of Users, in which case pricing and functionality may vary according to the type of User. You are responsible for the actions taken by your Users, and the compliance with these Terms by all Users, including what Users do with Your Data, and for all fees incurred by Users (or from adding Users). Any Offerings identified in an Order as being provided on per “user” basis have a specific natural person associated with each subscription, who must be identified in the User Account, and may not be changed in a manner to circumvent the number of Users permitted. A User associated with a “user” based subscription may access and use the applicable Offerings on any Internet browser and/or computer within your internal enterprise network, provided that only one User is assigned to a User Account and multiple individuals may not share the same User Account.

Access to Offerings. Subject to these Terms and during the applicable Subscription Term, you are granted a non-exclusive, non-sublicensable and non-transferable right for Users to access and use the Offerings for (a) your internal business purposes for your and your Affiliates’ benefits, and (b) the internal business purposes of Your Customers as part of the services that you provide to them, as applicable.

Use by Your Affiliates, Contractors, and Your Customers. You are only permitted to add your Affiliates, contractors, and Your Customers as Users (“Additional Users”) to access and use the Offerings, provided that:

• Use by each of your Additional Users is subject to these Terms, and you remain responsible for each of your Additional Users’ compliance with these Terms;
• Contractors are permitted to use the Offerings solely on your behalf as necessary to provide services to you; and
• Your Customers are permitted to use the Offerings as part of the services that you provide to them solely with respect to your products and services.

Ownership and General Restrictions. As between the parties, we exclusively own and reserve all right, title, and interest in and to the Offerings, the Documentation, our Confidential Information, and the Usage Data. All rights not expressly granted hereunder are reserved by us and our licensors. Usage Data shall be subject to our publicly-posted privacy policy and Privacy Law. Except for the limited rights expressly granted above, we reserve all rights, title and interest in and to the Offerings, including all intellectual property rights therein. No rights are granted to you hereunder other than as expressly set forth in these Terms. Without limiting the generality of the foregoing, except as otherwise expressly permitted in these Terms, you will not (a) use the Offerings for the benefit of any third party, or permit any third party to use the Offerings (other than as expressly permitted with respect to your Additional Users), (b) reproduce, modify, adapt or create derivative works of the Offerings, (c) reverse engineer, disassemble, decompile, translate or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to the Offerings, except to the extent expressly permitted by applicable law (and then only upon advance notice to us), (d) remove or obscure any proprietary or other notices on the Offerings, (e) attempt to gain unauthorized access to the Offerings, interfere with, or otherwise circumvent any security measures or mechanisms intended to limit your use within the Offerings, (f) use the Offerings for competitive analysis, product benchmark or to build competitive products; (g) publicly disseminate information regarding the performance of any products or services on the Offerings; (h) use the Offerings to transmit or store any malicious code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses; or (i) encourage or assist any third party to do any of the foregoing.

Fees. Unless otherwise set forth on an Order, you will be charged the applicable rates available at https://katalon.com/pricing or as otherwise made available on the Offerings. You agree to pay us the fees for the Offerings. Unless otherwise set forth in an applicable Order, payment shall be due within thirty (30) days from receipt of our invoice and shall be made in United States dollars, and invoices may be submitted through your Admin’s User Account or via email to the email address(es) you designate in your Admin’s User Account. Subject to any payment dispute (below), payment obligations are non-cancelable and all fees, once paid, are non-refundable. You agree (a) that any and all discounts, incentives and promotional pricings offered to you are conditioned upon your timely payments of all fees due hereunder; and (b) to pay a late charge of one and one-half percent (1.5%) per month (or part of a month), or the maximum lawful rate permitted by applicable law, whichever is less, for all amounts, not subject to a good faith dispute (below), and not paid when due. We may suspend the provision of the Offerings to any and all of your User Accounts until all fees due are paid in full. You are prohibited from creating new accounts until all fees due are paid in full.

Taxes. All fees are exclusive of Taxes. Amounts payable to us under these Terms are payable in full to us without deduction and are net of Taxes. You will pay all Taxes associated with the Offerings and these Terms, excluding any taxes based on our net income, property, or employees. We reserve the right to invoice for Taxes if required under the applicable taxing jurisdiction unless you provide us with an exemption certificate.

Increasing Usage Limits. You may add users, increase limits, or otherwise increase the Scope of Use of the Offerings by placing a new Order or modifying an existing Order, as permitted on the Offerings. Unless otherwise specified in the applicable Order, we will charge you for any increased use at our then-current rates, prorated for the remainder of the then-current Subscription Term.

Payment Disputes. You will notify us in writing within thirty (30) days of the date we bill you for any fees that you wish to dispute. Where you are disputing any fees, you must act reasonably and in good faith and will cooperate diligently with us to resolve the dispute. We will not charge you a late fee or suspend the provision of the Offerings for unpaid fees that are in dispute, unless you fail to cooperate diligently with us, or we determine the dispute is not reasonable or not brought in good faith by you.

Ownership Rights. As between the parties, you retain all right, title and interest (including any and all intellectual property rights) in and to Your Data and any modifications made thereto in the course of the operation of the Offerings. Subject to these Terms, you hereby grant to us a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of, and display (a) Your Data solely to the extent necessary to provide the Offerings to you, or to prevent or address service or technical problems under these Terms, or as may be required by law; and (b) Your Data for any of our internal business purposes, provided that such data is transformed and maintained in anonymized and aggregated form such that it does not contain any personal data subject to Privacy Law.

Use of Your Data. You will ensure that your use of the Offerings and all Your Data is at all times compliant with these Terms, your privacy policies, and all applicable laws and regulations and conventions, including Privacy Law. You are solely responsible for the quality, integrity, accuracy, content and legality of all Your Data. You represent and warrant that you have sufficient rights in Your Data, provided any required notices and received any required consents as necessary to grant the rights granted to us hereunder and that Your Data does not infringe or violate the intellectual property, publicity, privacy or other rights of any third party. You agree not to upload to the Offerings (a) any patient, medical or other protected information regulated by HIPAA or any similar federal or state laws, rules or regulations or (b) any financial or accounting data or payment information, other than your credit card information for account payment processing of the fees, which is processed and stored by our third-payment payment service provider and not processed or stored by us. Your Data hosted or otherwise processed by us shall be subject to the Data Processing Addendum (“DPA”) available at https://katalon.com/terms#dpa.

Data Security. We will implement and maintain administrative, physical, and technical safeguards for the protection of the security, confidentiality and integrity of, and prevention of any unauthorized use, access, processing, destruction, loss, alteration, or disclosure of, Your Data, in accordance with applicable industry standards. We will notify you immediately following discovery of any suspected breach or compromise of the security, confidentiality, or integrity of Your Data. Written notification provided pursuant to this paragraph will include a brief summary of the available facts, the status of our investigation, and if known and applicable, the potential number of persons affected by release of data relating to such person.

Removals and Suspension. We have no obligation to monitor any content uploaded to the Offerings. Nonetheless, if we deem such action necessary based on your violation of these Terms or in response to takedown requests for violations of third-party intellectual property rights, we may remove Your Data from the Offerings and/or suspend your access to the Offerings. We will use reasonable efforts to provide you with advance notice of removals and suspensions when practicable, but if we determine that your actions endanger the operation of the Offerings or other users, we may suspend your access or remove Your Data immediately without notice. We have no liability to you for removing or deleting Your Data from or suspending your access to any Offerings.

Non-Use and Nondisclosure. Each party shall treat as confidential all Confidential Information of the other party, shall not use such Confidential Information except to exercise its rights and perform its obligations under these Terms, and shall not disclose such Confidential Information to any employee or third party, except to those Users, employees, advisors or representatives of the recipient who are under a contractual or fiduciary duty of confidentiality similar in content to the provisions hereof and whom the recipient will remain responsible for hereunder (“Representatives”) and who are required to have access to such Confidential Information in order to perform the obligations under these Terms. Without limiting the foregoing, each of the parties shall use at least the same degree of care it uses to prevent the disclosure of its own confidential information of like importance, which care shall be no less than reasonable care, to prevent the disclosure of Confidential Information of the other party.

Exceptions. The receiving party may disclose Confidential Information of the disclosing party if so required pursuant to a regulation, law, subpoena, or court order (collectively, “Compelled Disclosures”), provided the receiving party gives the disclosing party notice of a Compelled Disclosure (to the extent legally permitted). The receiving party will provide reasonable cooperation to the disclosing party in connection with a Compelled Disclosure at the disclosing party’s sole expense.

Feedback. You may provide suggestions, feedback and other information to us regarding possible improvements in the operation, functionality or use of the Offerings (“Feedback”). You hereby grant us the perpetual, irrevocable, sublicensable right to use, copy, modify, create derivative works of and otherwise fully exploit the Feedback to improve the operation, functionality or use of our existing and future Offerings and commercializing such Offerings.

Changes to these Terms. We may modify the terms and conditions of these Terms from time to time, with notice to you in accordance with the provision on Notices below or by posting the modified Terms on our website; provided however, any modifications to these Terms will take effect at the next renewal of your Subscription Term and will automatically apply as of the renewal date unless you elect not to renew. Notwithstanding the foregoing, in some cases (e.g., to address compliance with Laws, or as necessary for new features) we may specify that such modifications become effective during your then-current Subscription Term or, solely with respect to additional or modified terms for new Offerings or features, upon your use of such new Offerings or features. If the effective date of such modifications is during your then-current Subscription Term and you object to the modifications, then (as your exclusive remedy) you may terminate your affected Orders upon notice to us, and we will refund to you any fees you have pre-paid for use of the affected Offering for the terminated portion of the applicable Subscription Term. To exercise this right, you must provide us with notice of your objection and termination within thirty (30) days of us providing notice of the modifications. For the avoidance of doubt, any Order is subject to the version of these Terms in effect at the time of the Order.

Term. These Terms will commence upon your acceptance of an Order, your creation or access to a User Account, or your download, installation, activation or use of the Offerings and will remain in effect until otherwise terminated as set forth below.

Termination. A party may terminate any Order if the other party commits any material breach of such Order (or the provisions of these Terms applicable to the particular Order) and does not remedy the material breach within thirty (30) days after the date that it receives notice of the breach. These Terms may be terminated by either party immediately upon written notice, in the event that: (a) the other party files a petition, in bankruptcy, seeking any reorganization, arrangement, composition, or similar relief under any Law regarding insolvency or relief for debtors, or makes an assignment for the benefit of creditors; (b) a receiver, trustee, or similar officer is appointed for the business or property of such party; or (c) the other party adopts a resolution for discontinuance of its business or for dissolution. We may terminate these Terms immediately in the event you fail to make any payments of fees when such payments are due or if you commit a material breach that is not capable of being cured or if you don’t cure such material breach within 30 days’ of written notice from us. Termination of an Order shall not be deemed a termination of these Terms. Termination of these Terms shall, however, terminate all outstanding Orders. Either party may also terminate these Terms upon no less than thirty (30) days’ prior written notice to the other party for any reason, if at such time there are no outstanding Orders then currently in effect.

Suspension of the Offerings. We may suspend use of the Offerings immediately upon notice to you for cause if we, in good faith, determine: (a) that you or your Users materially breach (or we, in good faith, believe that you or your Users have materially breached) any provision of these Terms, and such breach violates a third party right or materially impacts the performance of the Offerings or other users’ enjoyment of the Offerings; (b) there is an unusual and material spike or increase in your use of the Offerings and that such traffic or use is fraudulent or materially and negatively impacting the operating capability of any products or services on the Offerings; (c) that our provision of the products or services on the Offerings is prohibited by applicable Law; (d) there is any use of the Offerings by you or your Users that threatens the security, integrity, or availability of the Offerings; or (e) that information in your User Account or User Accounts of your Users are untrue, inaccurate, incomplete or otherwise fraudulent.

Subscription Auto-Renewal. To ensure that you will not experience any interruption or loss of services, your subscription to the Offerings include an automatic renewal option by default, according to which, unless you disable the auto-renewal option or cancel or modify your subscription prior to its expiration, the subscription will automatically renew upon the end of the then applicable Subscription Term for additional annual subscription periods subject to these Terms; provided that if your applicable Subscription Term is for a monthly period, your subscription will automatically renew for additional monthly subscription periods subject to these Terms. You will provide any notice of non-renewal through the means we designate, which may include account settings on the Offerings or contacting our support team. Canceling your subscription means that you will not be charged for the next billing cycle, but you will not receive any refunds or credits for amounts that have already been charged. Unless specified in an applicable Order, all renewals (a) are subject to the applicable products or services continuing to be offered on the Offerings, (b) will be charged at the then-current prices for the applicable Offerings, (c) will exclude any discount or other promotions offered during the prior Subscription Term, and (d) are subject to any changes in usage policies, usage limits or other Scope of Use. You agree that we may bill your credit card or other payment methods for renewals, additional users, overages to set limits or Scopes of Use, expenses, and unpaid fees, as applicable. Either party may elect to not renew an Order by giving the other party at least thirty (30) days’ written notice to terminate such Order before the beginning of the next Subscription Term for such Order, and such termination shall be effective at the end of the then-current Subscription Term.

Effect of Termination. Upon any termination or expiration of these Terms or any applicable Order, we shall no longer provide the applicable Offerings to you, and you shall promptly cease and cause your Users to promptly cease using the applicable Offerings. Upon termination of these Terms, each party shall promptly return or destroy all Confidential Information of the other party in its possession, except that each party may keep a copy of the other party’s Confidential Information for archival purposes, or otherwise in accordance with their respective internal recordkeeping procedures, or in compliance with applicable Laws, and will not be required to delete or destroy any copies maintained in its normal-course back-up media. After termination of any Order, we will have no obligation to store and/or make available Your Data for the applicable Offerings, and we may delete the same. All rights and obligations of the parties which by their nature are reasonably intended to survive such termination or expiration will survive termination or expiration of these Terms and each Order.

Offering Warranty. We warrant that during the Subscription Term, the Offerings will conform, in all material respects, with the Documentation. Such warranty shall only apply if the Offerings have been utilized by you in accordance with the Order, the Documentation, and these Terms. For any breach of our representation and warranty, your exclusive remedies are those described in the “Termination” section.

Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, WE MAKE NO, AND DISCLAIMS ALL, WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WE DO NOT REPRESENT OR WARRANT THAT THE OFFERINGS WILL BE ERROR-FREE OR THAT THE OFFERINGS WILL MEET YOUR OR YOUR USERS’ REQUIREMENTS OR THAT ALL ERRORS IN THE OFFERINGS WILL BE CORRECTED, AND WE MAKE NO WARRANTIES AND DISCLAIM ALL WARRANTIES WITH RESPECT TO ANY COMPONENTS OR APPLICATIONS CREATED OR PROVIDED BY A PARTY OTHER THAN US. THE WARRANTIES STATED IN THIS SECTION ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY US. You agree that any use or purchase of our products or services shall not be contingent on the delivery of any future functionality or features, or dependent on any oral or written comments we make regarding future functionality or features.

Our Indemnification. We will defend you, your Affiliates and their respective officers, directors, employees and agents (collectively, the “Customer Indemnitees”), against any claim, demand, suit or legal proceeding made or brought against any of the Customer Indemnitees by a third party alleging that the Offerings infringe or misappropriate such third party’s U.S. intellectual property rights (a “Claim Against Customer”), and will indemnify the Customer Indemnitees from any damages (including reasonable attorney fees and costs) finally awarded against any of the Customer Indemnitees as a result of, or for amounts paid under a court-approved settlement of, a Claim Against Customer. If a Claim Against Customer is brought or is likely, in our sole opinion, to be brought, we will, at our option and expense (a) obtain the right for you to continue using the Offering; (b) replace or modify the affected Offering so that it becomes non-infringing; or (c) upon notice to you, terminate these Terms or your use of the affected Offerings, provided that in the case of subsection (c) we will promptly refund to you the prorated portion of any unearned pre-paid subscription fees paid hereunder for the affected Offerings. Our obligations in this section do not apply to: (i) any products, services, technology, materials or data created or provided by a party other than us (including without limitation Your Data), (ii) any part of the Offerings made in whole or in part in accordance to your specifications, (iii) any modifications not made by us, (iv) any combination with other products, processes or materials not provided by us (where the alleged damages, costs or expenses arise from or relate to such combination), (v) where you continue the allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) your use of the Offerings not strictly in accordance with these Terms, the Scope of Use or any Documentation, ((i) through (vi), the “Excluded Claims”).

Your Indemnification. You will defend us, our Affiliates and their respective officers, directors, employees and agents (collectively, the “Katalon Indemnitees”) against any claim, demand, suit or proceeding made or brought against any or all of the Katalon Indemnitees by a third party arising out of or attributable to the Excluded Claims, and will indemnify the Katalon Indemnitees from any damages, reasonable attorney fees and costs finally awarded against the Katalon Indemnitees as a result of, or for any amounts paid under a court-approved settlement of an Excluded Claim.

Indemnification Procedure. Each party’s obligation to indemnify the other party is conditioned on the party seeking indemnification: (a) promptly notifying the indemnifying party in writing of any claim, suit or proceeding for which indemnity is claimed, provided that failure to so notify will not remove the indemnifying Party’s obligation except to the extent it is prejudiced thereby, (b) allowing the indemnifying party to solely control the defense of any claim, suit or proceeding and all negotiations for settlement; provided that the indemnifying party shall not settle any claim that requires the indemnified party to admit fault without the indemnified party’s prior written consent (such consent not to be unreasonably withheld or delayed), and (c) giving the indemnifying party reasonable assistance in the defense and settlement of any claim, suit or proceeding for which indemnity is claimed.

Sole Remedy. The foregoing indemnity obligations state the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this section.

Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY UNDER THESE TERMS OR OTHERWISE, REGARDLESS OF THE FORM OF CLAIM OR ACTION: (I) IN AN AMOUNT THAT EXCEEDS THE FEES YOU HAVE PAID FOR THE OFFERINGS UNDER THE APPLICABLE ORDER IN THE PRECEDING 12 MONTHS; OR (II) FOR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR INDIRECT DAMAGES OR COSTS (INCLUDING WITHOUT LIMITATION, LOSS OF GOODWILL OR PROFIT, BUSINESS INTERRUPTION, LOSS OF BUSINESS) IN CONNECTION WITH THE OFFERINGS OR THESE TERMS, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS. The limitations of liability set forth in this paragraph will not apply to: (a) each party’s violation of the other party’s intellectual property rights; (b) your payment obligations; and (c) a party’s liability related to (i) its indemnification obligations, (ii) its material breach of its confidentiality obligations, (iii) its breach of any restrictions on the access or use of the Offerings, and/or (iv) gross negligence or intentional misconduct, or (c) any obligation where the applicable Law does not allow the limitation(s) thereof. The parties hereby acknowledge that the provisions of this paragraph allocate the risks under these Terms and the applicable Order which are acknowledged and agreed by and between you and us, and our pricing reflects this allocation of risk and the limitation of liability specified herein.

Assignment. Neither these Terms nor any rights or obligations under these Terms may be assigned or otherwise transferred by either party without the prior written consent of the other party; provided that, such prior written consent is not required for any assignment by either party to its Affiliates or to any successor of substantially all of its business or assets to which these Terms relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. These Terms shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.

Governing Law. These Terms shall be governed by the laws of the State of Georgia, USA, without regard to the conflicts of law provisions of any jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms. To the extent that any lawsuit is permitted under these Terms, the parties hereby expressly consent to the personal and exclusive jurisdiction and venue of the state and federal courts located in Fulton County, Georgia, USA (to the extent not addressed by arbitration below, if any).

Dispute Resolution. In the event of any dispute, claim, or controversy in connection with these Terms (collectively, “Disputes”), each party’s senior representatives will, in good faith, attempt to resolve the Dispute. If the parties are unable to resolve the Dispute within thirty (30) days or within such other time period as the parties may agree in writing, then the parties may commence binding arbitration under JAMS’ Comprehensive Arbitration Rules and Procedures. The parties will share equally the fees and expenses of the JAMS arbitrator. The arbitration will be conducted by a sole arbitrator mutually agreed to between the parties within twenty (20) days of receipt by respondent of the request for arbitration or, failing that, by JAMS under its then prevailing rules. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The arbitrator will have the authority to grant specific performance or any other equitable or legal remedy, including provisional remedies, provided that the arbitrator will have no authority to award punitive damages or consequential damages or liquidated damages. Each party will be responsible for its own incurred expenses arising out of any dispute resolution procedure. Any arbitration proceedings will be conducted in the English language and will take place in Fulton County, Georgia, USA.

Injunctive Relief. Nothing contained in these Terms shall deny either party the right to seek immediate injunctive or other equitable relief from a court of competent jurisdiction: (a) in the context of a bona fide emergency or prospective irreparable harm to preserve the status quo pending resolution of a dispute between the parties or (b) where a party alleges or claims a violation of any agreement regarding intellectual property, confidential information or noninterference. Such an action may be filed and maintained notwithstanding any ongoing discussions between the parties or any ongoing arbitration proceeding.

Additional Customer Terms. Additional terms and conditions specific to certain products and services in the Offerings are set forth in the Addendum (the “Additional Customer Terms”). If you use any of the Offerings described in the Additional Customer Terms, the Additional Customer Terms will apply with respect to such Offerings, in addition to these Terms, and such Additional Customer Terms are incorporated herein by reference in their entirety.

Notice. All notices, consents and other communications hereunder shall be provided in writing and shall be delivered personally or by email or registered or certified mail (return receipt requested) to the parties at the addresses set forth on any Orders or in any User Account (or such other address as may have been furnished by or on behalf of such party by like notice); provided that, for any notices sent to us, a copy of the notice will be sent to legal@katalon.com. We may provide notice to you using your User Account or in-product notifications, or to your Admin contact information, including your Admin’s email address. You agree that any electronic communication will satisfy any applicable legal communication requirements, including that such communications be in writing. Communications sent by email or to your User Account shall be deemed delivered and received upon dispatch. Communications sent by registered or certified mail shall be deemed delivered upon receipt.

Publicity Rights. You agree that we may identify you as a customer and use your name, logo and a description of your use case on our website and in marketing and promotional materials, subject to your standard trademark usage guidelines that you provide to us. We will promptly stop doing so upon your request sent to legal@katalon.com.

Export Compliance. The Offerings are subject to export restrictions by the United States government and may be subject to import restrictions by certain foreign governments, and you agree to comply with all applicable export and import laws and regulations in your access to, use of, and download of the Offerings (or any part thereof). You shall not, directly or indirectly, import, export, re-export or transship the Offerings, services, or technical information in violation of any applicable export control and economic sanctions laws and regulations of any country having jurisdiction over the Offerings, or parties to these Terms (“Export Laws”), including without limitation, the U.S. Export Administration Regulations and those economic sanctions regulations maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, and any other economic sanctions imposed by the U.S Government upon any country, territory, or person. You represent and warrant that (a) you are not the subject or target of, and that you are not located in a country or territory (including without limitation, Belarus, Russia, North Korea, Cuba, Iran, Syria, and Crimea) that is the subject or target of, economic sanctions of the United States or other applicable jurisdictions, and (b) none of Your Data is controlled under the U.S. International Traffic in Arms Regulations or similar Laws in other jurisdictions. You agree not to use or provide the Offerings for any prohibited end use, including to support chemical, biological or nuclear weapons, or missile technology, or military-intelligence, without the prior permission of the U.S. government. You agree to comply with all applicable Export Laws and will indemnify, defend, and hold us harmless from any claim against us due to your violation or alleged violation of the Export Laws.

U.S. Government End-Use Provisions. The following applies to all acquisitions of the Offerings and Documentation by or for the U.S. government or by any prime contractor or subcontractor under any contract, grant or other activity with the U.S. government. The Offerings and Documentation and services utilizing the Offerings and Documentation provided under these Terms are “commercial items” as that term is defined at 48 C.F.R. 2.101 consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and other applicable acquisition regulations and are provided to the U.S. Government only as a commercial item. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202, all U.S. Government users and licensees acquire the Offerings and its associated services and Documentation with only those rights and are subject to the restrictions set forth in these Terms. Notwithstanding the foregoing, the Offerings and its associated services and Documentation may not be acquired by the U.S. government pursuant to a contract incorporating clauses prescribed by FAR Subpart 27.4 or DFARS Subpart 227.4.

Force Majeure. Nonperformance of either party, except for the making of payments, shall be excused to the extent that performance is rendered impossible by strike, fire, flood, earthquake, governmental acts or orders or restrictions, cyber-attacks, information security and data breaches caused by third parties, failure of cloud services, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of such party (collectively, “Force Majeure Events”). The party affected by a Force Majeure Event will take all reasonable actions to minimize the consequences of any such event.

Entire Agreement; Amendment. These Terms together with the Orders, and any attachments, schedules, exhibits and addenda (including without limitations, the Additional Customer Terms) referenced herein (the “Attachments”) constitute the entire agreement between the parties regarding the subject matter hereof. All prior or contemporaneous agreements, proposals, understandings, and communications between the parties regarding the subject matter hereof, whether oral or written, are superseded by and merged into these Terms. Except as otherwise expressly set forth herein, no modification or amendment to these Terms, nor any Attachment or Order, will be binding unless by an agreement in writing signed by both parties (or in the case of online Terms, accepted by you) that specifically references and clearly states the intention to amend these Terms, such Attachment or such Order, as applicable. Any terms and conditions set forth in an Order shall solely be applicable to such Order and shall not affect any other Orders between the parties. In the event of any conflict between these Terms and those of any Order or Attachment, these Terms will control (unless such Order or Attachment is intended to control), and the terms of an Order, an Attachment, and these Terms will prevail over any conflicting provision in any purchase order or any other instrument regardless of execution by the parties. You may not use a purchase order or other instrument not issued by us to modify or add to these Terms, and all such attempted modifications or additions to these Terms in any such purchase order or instrument shall be void and of no effect, even if accepted or signed by both parties. Any purchase orders that are accepted by us are accepted expressly subject to these Terms without regard to any additional or conflicting terms therein. If you have a separate written agreement with us for your use of the Offerings, these Terms will not apply to you, unless that written agreement does not cover a particular product or service, in which case, these Terms apply solely to your use of that particular product or service.

Other Miscellaneous Terms. The relationship between the parties to these Terms is and shall be that of independent contractors. It is expressly agreed that nothing in these terms shall be construed to create or imply a partnership, joint venture, agency relationship or contract of employment. There are no third-party beneficiaries to these Terms. Any waiver of the provisions of these Terms or of a party’s rights or remedies under these Terms must be in writing referencing these Terms to be effective. Failure, neglect, or delay by a party to enforce the provisions of these Terms or its rights or remedies at any time shall not be deemed to be a waiver of such party’s rights under these Terms and shall not prejudice such party’s right to take subsequent action. A party’s waiver of the performance of any covenant or any breach is not to be construed as a waiver of any succeeding breach or of any other covenant. If any term, condition, or provision in these Terms is found to be invalid, unlawful or unenforceable to any extent, the invalid, unlawful or unenforceable term, condition or provision shall be severed from the remaining terms, conditions and provisions, which shall continue to be valid and enforceable to the fullest extent permitted by law. The language of these Terms, any Attachments and all Orders is English. All contract interpretations, notices and dispute resolutions shall be in English. Translations of any of these documents are not to be construed as official or original versions of the documents.

Certain capitalized terms are defined below, and others are defined contextually in these Terms.

“Account Profile” means any profile or registration information (including profile or information relating to your organization or an individual User) that you or a User provides in the User Account, which may include without limitation, your organization’s name, an individual User’s name, email address and other contact information, username and password, and subscription, Order and payment information.

“Admin” means a person (who is a User) designated by you to administer any Offerings to Users on your behalf.

“Affiliate” means any entity that directly or indirectly controls or is controlled by, or is under common control with, the party specified. For purposes of this definition, “control” means direct or indirect ownership of more than fifty percent (50%) of the voting interests of the subject entity.

“AI Product” means any artificial intelligence or machine learning feature, capability or functionality made available in the Offerings, including without limitation, any feature, capability or functionality identified by us as AI-powered or AI-assisted.

“Cloud Products” means our hosted or cloud-based services and solutions, including any client software we provide as part thereof.

“Confidential Information” means any material or information disclosed by either party to the other party either directly or indirectly, relating to these Terms, in writing, orally or by inspection of tangible objects (including without limitation material or information relating to such party’s research, development, know-how, products, product plans, services, customer, customer lists, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, marketing, finances, or other business information or trade secrets), which is designated as “Confidential,” “Proprietary” or some similar designation, or information the confidential or proprietary nature of which is reasonably apparent under the circumstances. Confidential Information shall not include information which (a) becomes a part of the public domain through no act or omission of recipient; (b) was in recipient’s lawful possession prior to the disclosure by discloser and had not been subject to limitations on disclosure or use, as shown by recipient’s files existing at the time of disclosure; (c) is independently developed by recipient’s employees or independent contractors who have not had access to the Confidential Information; or (d) is lawfully disclosed hereafter to recipient, without restriction, by a third party who did not acquire the information directly or indirectly from discloser.

“Documentation” means our standard published documentation for the Offerings, including any usage guides and policies, currently available at https://docs.katalon.com/docs.

“Input” means, in relation to your use of any AI Product, any of Your Data that you or your Users upload, submit, provide or make available to be processed by such AI Product.

“Laws” means all applicable local, state, federal and international laws, regulations and conventions, including those related to Privacy Law and Export Laws.

“Offerings” means the products and services offered by us on, through, or in connection with, the Software or Cloud Products (including without limitations, the Free Offerings and Pre-Released Offerings), as designated on an Order and within the Scope of Use.

“Order” means any applicable online order form, flow, in-product screen or other ordering document or process approved by us that specifies, as applicable, mutually agreed upon (a) Offerings you are ordering from us (either directly by you or indirectly through a Reseller in accordance to your Reseller Agreement), (b) Scope of Use, and (c) (for a paid Order) the amount or rate you will be charged, the billing and renewal terms, applicable currency, and form of payment.

“Output” means, in relation to your use of any AI Product, any output generated and returned to you or your User, as applicable, by such AI Product, based on Input.

“Privacy Law” means, as applicable, the laws, regulations or other legal requirements relating to data protection, privacy, security or otherwise with respect to the use, collection, retention, storage, security, disclosure, transfer, disposal, and other processing of personal data.

“Reseller” means a reseller, distributor or partner authorized by us in writing to resell or offer Offerings to you, in the case where you purchase such Offerings from such authorized reseller, distributor or partner.

“Scope of Use” means your authorized scope of use of an applicable Offering in compliance with the applicable Documentation and as designated on an Order, which may include (as applicable): (a) Subscription Terms, (b) number and type of Users or organizations, (c) numbers of licenses, copies, instances, nodes, executions or parallel execution sessions, (d) usage metrics, usage limits, data retention period, or other scope of use parameters, or (e) entity, division, business unit, website, field of use or other restrictions or billable units.

“Software” means our commercially available downloadable, standalone or on-premise software products, including such products hosted on your cloud-based services and mobile applications of such products. Your Order will specify the Software that you may use.

“Subscription Term” means your permitted subscription period for a subscription-based Offering designated on an Order and any renewal thereof. The initial Subscription Term will commence on the date set forth on the invoice, or if no date is provided, upon activation of the Offering.

“Taxes” means any applicable taxes, levies, duties, or other similar exactions imposed by a legal, governmental, or regulatory authority in any applicable jurisdiction, including, without limitation, sales, use, value-added, consumption, communications, or withholding taxes.

“Test Content” means test scripts, records and other test data you send to, or create and store in, the Offerings, including the testing project name and date, test execution results (log, image, video) and reports, and execution environment information.

“Usage Data” means information relating to your relationship with us, including User and User Account information, billing details, authorization information (e.g., username, password, two factor authentication), as well as system logs and user account activity and other information relating to the provision, use and performance of various aspects of the Offerings, and related systems and technologies, including without limitation operating speed, memory usage, throughput, bandwidth, errors and error rates, user logins, feature usage, license usage, performance data, and other information collected in the general operation of the Offerings.

“User Account” means an account associated with a User that contains an Account Profile, established by you or an Admin to enable the User to use or access the Offerings within your organization. A User Account shall not be shared with multiple Users.

“Users” means the specific natural persons that are your employees or Additional Users, whom you permit and invite to use the applicable Offerings for your benefit or as otherwise permitted for such Additional Users, and for whom you have paid the required fees (as applicable for paid Offerings).

“Your Customer” means a customer for your testing services and the resulting output and who has a separate subscription to the applicable Offerings that you are providing support to such customer therewith.

“Your Data” means your Test Content, data, content, videos, images, objects, patterns, Input and Output from any AI Product (if any), or other materials of any type that we host or otherwise process for you in performance of the Offerings. Your Data does not include Usage Data.

If you use any of the Offerings below, these Additional Customer Terms (“Additional Terms”) will apply with respect to such Offerings, in addition to the Customer Terms of Use (the “Customer Terms”, the Customer Terms together with the Additional Terms shall hereafter be referred to as this “Agreement”). All defined terms used herein but not otherwise defined, shall have the meanings given to them in the Customer Terms.

If you download, purchase or otherwise use Software as part of the Offerings, you agree to comply with these additional restrictions:

• Upon termination of any Order for the Software for any reason, you will promptly at our option either return or destroy all copies of the Software and any related Documentation in your possession or control.
• Unless otherwise specified in an Order, for each Software license that you purchase, you may install one (1) production instance of the Software on systems owned or operated by you or one of your Users.
• The Software may be licensed in online or offline mode. If you purchase a license for use of the Software in online mode, you must maintain an online access to connect the Software to our online license right management server for license activation, management, subscriptions tracking, support and updates. If you purchase a license of the Software for use in offline mode, you can disconnect any online access to the Software. However, you agree to provide appropriate information to verify your compliance with the Scope Of Use or you must download and install the Katalon License Server for our license activation, management, subscriptions tracking, support and updates. If you use the Software in offline mode, you will permit us to remotely access the Katalon License Server twice per year or provide us with a server-generated report from the Katalon License Server in the format we specify, in each case so that we can verify your usage of the Software is within these Terms, the Scope of Use and the Documentation.
• Use of the Software is limited to use in object-code form only. With respect to your use of the Software for Your Customers as permitted in the Agreement, you may not provide access or use of your copies of the Software to Your Customers or include the Software as part of a product, service or other offering you provide to Your Customers. In addition, you must verify that each of Your Customers has its own copy of the Software.
• Except for the limited rights expressly granted in this Agreement, we reserve all rights, title and interest in and to the Software, including all related intellectual property rights. No rights are granted to you hereunder other than as expressly set forth above in this Agreement. Without limiting the generality of the foregoing, you may not (a) distribute outside your organization, sublicense, copy, modify, or publicly display the Software, (b) use on behalf of any third party, or permit any third party to use, the Software (except for the limited use for Additional Users described in the Customer Terms), (c) decompile or reverse engineer the Software, (d) remove any proprietary rights notices on the Software, or (e) attempt to gain unauthorized access to the Software, interfere with, or otherwise circumvent any security measures or mechanisms to limit your use within the Software. If you believe you are entitled to reverse engineer the Software because of rights that may be granted as a matter of local law, such as the Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs (as amended), then (i) you shall first request the technical information from us, (ii) this technical information may be used only for the purposes of ensuring interoperability and compatibility, and (iii) the technical information will be considered our Confidential Information and treated as such according to this Agreement.
• You acknowledge that the Software may include open source and freeware software and materials licensed from third parties. The terms in this Agreement are offered by us alone and do not limit the rights and requirements in any such third party materials.
• You are solely responsible for ensuring that your systems meet the hardware, software and any other applicable system requirements for the Software as specified in the Documentation.
• You agree that we may verify that your use of the Software is in compliance with this Agreement and the Scope of Use. You will provide reasonable assistance, cooperation, and access to relevant information in the course of any verification. If you exceed your Scope of Use, we may invoice you for any past or ongoing excessive use, and you will pay the invoice promptly after receipt.

If you purchased the Offerings from a Reseller, then to the extent there is any conflict between this Agreement and the agreement entered between you and the respective Reseller, including any purchase order (“Reseller Agreement”), then, as between you and us, this Agreement shall prevail. Any rights granted to you in such Reseller Agreement which are not contained in, or consistent with, this Agreement, apply only in connection with the Reseller. In that case, you must seek redress or realization or enforcement of such rights solely with the Reseller and not us. The Reseller is not authorized to modify this Agreement or make any promises or commitments on our behalf, and we are not bound by any obligations to you other than as set forth in this Agreement. These additional terms shall apply to your use of the Offerings through a Reseller:

• Your Reseller may also be added as an Additional User, provided that your Reseller is permitted to use the Offerings solely on your behalf as necessary for such Reseller to provide you services.
• The fees and subscription number/type for the Offerings will be set forth in the Reseller Agreement between you and the Reseller.
• You and your Users’ access to the Offerings is subject to our receipt from such Reseller of the payment of the applicable fees paid by you to the Reseller. You hereby acknowledge that at any time, at our discretion, the billing of the fees for your use of the Offerings purchased through a Reseller may be assigned to us, such that you shall pay us directly the respective fees. We may suspend or terminate your rights to use the Offerings if we do not receive the corresponding payment from the Reseller.
• Instead of an Order with us, your order details (e.g., the Offerings, Subscription Term, and Scope of Use) will be as stated in the Order placed with us by the Reseller on your behalf, and the Reseller is responsible for the accuracy of any such Order as communicated to us.
• If you are entitled to a refund under this Agreement, then unless otherwise specified by us, we will refund any applicable fees to the Reseller and the Reseller will be solely responsible for refunding the appropriate amounts to you.

Free Offerings. We may offer, from time to time, part or all of the Offerings on a free, no-obligation basis (“Free Offerings”). Free Offerings are for trial purposes only, and the terms and conditions of the Free Offerings are set forth hereunder and as communicated to you within the Offerings or in an Order.
Free Offerings may not be combined or used in conjunction with any paid Offerings. You and/or your Users shall not (a) use, mix or combine a Free Offering with any paid Offering within the same organizational account or within your organization, (b) use, mix or combine a Free Offering with any paid Offerings within a User Account, or between/among User Accounts, (c) have any combination of one or more free User Accounts with any paid User Account; or (d) use results, outputs, tests, or data produced or generated by a Free Offering with any paid Offering or in any paid account. As a non-limiting example, you cannot use a free version of Katalon Studio in conjunction with, or use tests and other outputs generated using a free version of Katalon Studio within, a paid account or paid Offering (such as a paid version of Katalon Runtime Engine).

Pre-Released Offerings. We may offer, from time to time, certain products or services on our Offerings in Alpha or Beta versions, pre-released versions or otherwise still under development (the “Pre-Released Offerings”). We use our best endeavors to identify such Pre-Released Offerings as such. Pre-Released Offerings may be inoperable or incomplete, and may contain bugs, suffer disruptions and/or not operate as intended and designated, more than usual. We reserve the right to modify, cancel and/or limit any Pre-Released Offerings at any time and without liability or explanation to you.

Governing Terms of Free Offerings and Pre-Released Offerings. We grant you access and use of the Free Offerings and Pre-Released Offerings subject to this Agreement and within the Scope of Use, provided that notwithstanding anything in this Agreement or elsewhere to the contrary, in respect of Free Offerings and Pre-Released Offerings (a) such products or services are provided or licensed (as applicable) hereunder on as “As-Is”, “With All Faults”, “As Available” basis, with no warranties, express or implied, of any kind; (b) any indemnity undertaking by us in this Agreement shall not apply; and (c) IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF KATALON, ITS AFFILIATES OR ITS THIRD PARTY SERVICE PROVIDERS, UNDER, OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, EXCEED US$100. We make no promises that any Free Offerings and/or Pre-Released Offerings will be made available to you and/or generally available.

Changes to Terms. We reserve the right to modify, cancel and/or limit any Free Offerings and/or Pre-Released Offerings at any time and without liability or explanation to you. We may modify the terms and conditions in this Agreement related to Free Offerings and Pre-Released Offerings from time to time, with notice to you in accordance with the provision on Notices in the Customer Terms or by posting the modified terms on our website. Together with the notice, we will specify the effective date of the modifications. You must accept the modifications to continue using Free Offerings or Pre-Released Offerings. If you object to the modifications, your exclusive remedy is to cease using the Free Offerings or Pre-Released Offerings.

If you purchase our advisory, deployment, adoption, installation, testing or other professional services, as designated on an Order and/or a separate statement of work (collectively, the “SOW”), to assist with the use, configuration or deployment of the Offerings (including, but not limited to, on-site deployment of our on-premises Offerings) (the “Services”), you agree to accept the Services on a non-exclusive basis and subject to these additional service terms and conditions. We will use reasonable business efforts to perform the Services and complete any work product identified in an applicable SOW, in accordance with milestones or schedule set forth in the SOW, if any.

Except as set forth on an SOW, Services are provided Monday to Friday (excluding those holidays recognized by Katalon) during our normal business hours.

We will appoint a designated service manager responsible for the administration of the Services.

Any maintenance or support provided to you by us for the Services will be as set forth in the applicable SOW.

You are responsible for appointing a designated contact responsible for the administration of the Services. Any change to either the designated contact or contact methods must be in writing and provided to our designated Services manager upon no less than two (2) business days’ notice.

To ensure we are able to provide the Services, you agree that, in addition to those specific responsibilities set out in each SOW, you will, in a diligent and professional manner:

• Provide the appropriate and necessary resources to ensure we are able to complete the Services;
• Carry out reviews and respond to requests for approval and information on a timely basis;
• Ensure that at least one representative with the requisite expertise is available during regular business hours to provide such information and assistance as we may require in connection with the delivery of the Services;
• Provide us with timely and accurate information and documentation, as reasonably required by us to perform the Services;
• Provide a safe area for us to perform any Services to be performed on your site; and
• Provide for all necessary or reasonably useful Your Data required for us to perform, and you to receive, the Services.

We shall not be responsible for any delays or for our inability to perform the Services because of your failure to diligently provide necessary information, resources, access or materials to us.

In the event you wish to request a change in the Services, or request that we provide Services outside of the scope of the Services specified in a particular SOW, you will, unless otherwise specified in such SOW, prepare a written change request. We will evaluate and respond to any change request, and if we agree to the change request, we will advise you in writing of any impact on the cost and delivery of Services as a result of any proposed change. Upon written confirmation from your representative, we will proceed with the change, at the price and upon the terms agreed upon and the applicable SOW will be amended in writing accordingly.

We will use reasonable efforts to deliver all Services as set forth in each SOW. In the event of a delay, we will advise your representative as soon as possible of a new date for performance. If the timetable for performance of any Services is delayed as a result of a (a) delay by you in the performance of your responsibilities, or (b) change in the scope of Services to be provided, then the timetable for performance of any Services will be extended for the period of time that the Services delivery has been delayed as a result of such events.

You acknowledge and agree that you are responsible for ensuring that all Services performed, and deliverables received, are accurate and meet all mutually agreed upon requirements. You will be deemed to have fully accepted any Services and deliverables delivered upon the earlier of (a) five (5) days from the date of delivery by us, or (b) your execution of the acceptance documentation provided (such as the milestone acceptance documents within the SOW or a receipt acknowledgement for the Services).

Using AI Products in the Offerings present significant opportunities for new and efficient forms of content creation and Test Content generation, across a wide range of automation software testing. However, AI Products also present new and unsettled legal and business risks that necessitate caution. Among other concerns, companies risk disclosing and losing control of confidential information incorporated in Input, generating Output that may violate third party rights, and creating content for commercialization that may appear proprietary but is not, meaning there is a potential risk that what is created through AI Products may be used by others.

We may use technology provided by third party service providers (such as OpenAI) to provide our AI Products. You agree that Input and Output may be shared with and processed by such third-party service providers for the purpose of providing AI Products to you. By using the AI Products (including any Output), you acknowledge and agree to comply with, and to require your Users to comply with the following terms and policies of such third party service provider(s):

• Open AI (https://openai.com/policies/usage-policies)

Thank you for choosing Katalon products! To empower you with a seamless experience with our Offerings, Katalon, Inc. and/or its Affiliates (“Katalon”, “we”, “us” or “our”) provide support for our Software and Cloud Products in accordance with this Katalon Support Policy (the "Policy").

Capitalized terms used but not defined herein shall have the meaning ascribed to them in the Customer Terms of Use available at https://katalon.com/terms#customer-terms-of-use.The support services described in this Policy are separate from our professional services and training services. We may update this Policy periodically, and we will notify you or post the changes on our website. However, any changes will only be made in the normal course of business and will apply to all customers with similar products or services.

We will provide comprehensive support under this Policy for your paid subscription to our Cloud Products and supported versions of Software under an effective Order (collectively, “Supported Products”). This Policy doesn't cover free or pre-released offerings, but you can find resources in our Documentation or Community.

Our standard support is available Monday through Friday during normal business hours of our support location, excluding holidays recognized by us. For support outside these hours, consider our paid Premier Support Plan.

During the Subscription Term, you will be provided with helpdesk accounts on our online Support Portal (available at https://support.katalon.com) to submit, view, and manage your support requests. We do not limit the number of support requests you can submit on our Support Portal.

We currently don't offer telephone or video support unless you have the Premier Support Plan.

You can submit three types of requests:

• General Questions & Workarounds: Questions about product functions, how they work, and requests for temporary solutions to issues.
• Bugs & Security Fixes: Reports of errors or vulnerabilities that affect product security or functionality. An error is a significant failure of the product to work as described in the Documentation.
• Feedback: Suggestions or ideas for improving the product.

Severity Classifications. We classify support issues into the following levels to ensure they are handled consistently:

• Critical:The product's main functions are unusable, causing major disruption to your business, and there are no workarounds.
• Major: The product's main functions are severely impaired but still primarily usable with workarounds.
• Minor: The product's function is degraded, but it's still usable with workarounds and doesn't affect main functions.
• Cosmetic: A minor issue with no significant impact on the product's functionality.

We will determine the appropriate severity level for your issue.

Response Time We aim to respond within the following timeframes:

To help us quickly address your support requests, please provide all relevant details in English. This includes a thorough description of the issue, execution logs, error logs, test artifacts, contact information, and any other helpful documentation. We may not be able to process your request if we don't have enough information to troubleshoot the problem.

We will do our best to recreate and resolve the issue based on the details you provide. We appreciate your cooperation in this process, including having someone available who can answer any follow-up questions we may have. If we can't reproduce the issue, we'll let you know so we can discuss it further.

We are not responsible for:

• Support issues that arise from using our products outside of their intended use, not in compliance with our customer agreement, or not following the Documentation;
• Requests to create test scripts or custom keywords;
• Issues arising out of any products, services, technology, materials or data created or provided by a party other than us;
• Issues we cannot reproduce or that don't significantly affect the product's main function;
• Delays in resolving issues caused by your lack of cooperation or information; and
• Your use of a version of Software or Cloud Product that is no longer supported.

Our Supported Products are constantly improving. To ensure you receive the best possible support and access to the latest features, we strongly recommend using the most recent versions of our Supported Products. Upgrading to the latest versions of Supported Products ensures you benefit from the newest features, bug fixes, and security updates.

We fully support our Cloud Products, and specific versions of our Software will be supported until the dates listed below and/or in our Documentation. In exceptional circumstances, we may extend support for older versions at our sole discretion.

Maintenance Development: Until the date specified, we will support only Critical Bugs and Critical/High severity Security Fixes, as defined under the National Institute of Standards and Technology’s Common Vulnerabilities and Exposures (CVE) system.

Active Development: Until the date specified, we will support Bugs & Security Fixes of all severity levels and continue to develop new features for the Supported Products.

Once a product version reaches its end-of-support date, we may restrict or block access to it. This helps us maintain the overall security and stability of our software ecosystem.

You should carefully read the following terms and conditions before downloading and installing the Katalon Recorder (“Recorder”) of Katalon, Inc. (“Katalon”). By proceeding to download and use the Recorder, you acknowledge your acceptance of the terms and conditions of this License Agreement (“Agreement”). You acknowledge that downloading the Recording constitutes your acceptance to this Agreement.

If you are entering into this Agreement on behalf of a corporation or other legal entity (“organization”), then (i) except as indicated, all references to “you” in this Agreement after this paragraph shall mean the organization, and (ii) by downloading and using the Recorder you represent and warrant (x) that you are currently employed by the organization and have the authority and legal ability to enter into this Agreement on behalf of the organization, and (y) the organization agrees to be bound by all of the terms of this Agreement.

If you do not agree to the terms and conditions of this Agreement, then do not download or install the Recorder.

Copies of this agreement are available for download and printing by using current web browser software and going to katalon.com.

This is a license and not a sale. The Recorder with which this Agreement is provided is licensed to you under the following terms and conditions which define what you can and cannot do with the Recorder. This Agreement comprises the entire agreement between you and Katalon, and supersedes any other agreement, terms or promises, oral or written, with respect to the subject matter of this Agreement.

Katalon Recorder is a browser plugin for Chrome and Firefox that assists automation testing recording and playback and allows for the export of results to Katalon Analytics and to various frameworks such as C#, Java, Ruby, Python, and Robot. More information can be found in the online guides and documentation that accompany the Recorder or are made available at https://docs.katalon.com (the “Documentation”).

Subject to the terms and conditions of this Agreement, Katalon grants you a nonexclusive, nontransferable, non-sublicensable license to (a) use the Recorder solely on your computers in accordance with the Documentation in order to assist you with automation testing of your applications, and (b) make modifications and corrections to the Recorder (collectively, “Modifications’) in connection with this permitted use and subject to the instructions in any Documentation. If you are an organization, then your use of the Recorder includes use by your Affiliates (as defined below) and will be considered part of “you” and “your organization,” subject to all provisions of this Agreement and the following (a) you are responsible for each of your Affiliates’ compliance with this Agreement and will be jointly and severally liable with each of the Affiliates for any breach of the provisions of this Agreement, and (b) the entity may not use the Recorder under your license once it stops being an Affiliate. As used herein, an “Affiliate” means any entity that controls, is controlled by, or is under common control with you, where “control” means ownership of at least 50% of the voting stock of such entity. You may also use the Documentation solely in connection with your use of the Recorder. You may make a reasonable number of copies of the Recorder and Documentation in connection with your use. This license only applies to the version of the Recorder you have downloaded and not any future versions.

The following conditions and limitations on your use of the Recorder apply. You may not:

• access the Recorder if you are or become Katalon’s direct competitor, except with Katalon’s prior written consent;
• use the Recorder for purposes of monitoring the Recorder’s performance or functionality or for any other benchmarking or competitive purposes;
• distribute outside your organization, sublicense, copy, or publicly display the Recorder, including binary versions of the Recorder;
• use on behalf of any third party, or permit any third party to use, the Recorder;
• decompile or reverse engineer the Recorder;
• remove any proprietary rights notices on the Recorder;
• use the Recorder in violation of the Documentation; or
• attempt to gain unauthorized access to the Recorder or circumvent any security measures within the Recorder.

If you believe you are entitled to reverse engineer the Recorder because of rights that may be granted as a matter of local law, such as the Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs (as amended), then (1) you shall first request the technical information from Katalon, (2) this technical information may be used only for the purposes of ensuring interoperability and compatibility, and (2) the technical information will be considered Katalon’s confidential information and treated as such according to the terms set forth in this Agreement.

You may submit Modifications to Katalon through Katalon’s Git repository. Modifications must be made and submitted according to the Documentation (https://docs.katalon.com). All Modifications and all suggestions, enhancement requests, recommendations or other feedback provided by you, including relating to the Recorder (“Feedback”) are owned exclusively by Katalon, and you on behalf of yourself and any of your users hereby assign to Katalon all right, title and interest, including all intellectual property rights, in and to all Modifications and Feedback. To the extent ownership rights are not effectively transferred to Katalon above, you grant Katalon a royalty-free, worldwide, irrevocable, perpetual license to copy, display, perform, distribute, modify, create derivative works of, and otherwise use and exploit any Feedback and Modifications and incorporate into them into the Recorder and authorize others to do the same. Katalon may use and incorporate any you. Katalon is not obligated to use or include any Feedback or Modifications which have been submitted. In addition to any conditions and requirements in the Documentation, the following apply to any Modifications you make:

• all Modifications must be made available by you in source code form if you would like the Modification included in a release of Recorder;
• you may not distribute the Modifications together with the Recorder; as steward of the Recorder, only Katalon may release updated versions of the Recorder that may or may not contain Modifications;
• you represent, warrant and covenant that you will not include in any Modifications any material to which you do not have full rights to provide or any software subject to any license terms that require as a condition of its use, modification or distribution that such software (A) be disclosed or distributed in source code form, or (B) be made available for the purpose of making derivative works.

Except for the limited rights expressly granted above in this Agreement, Katalon reserves all rights, title, and interest in and to the Recorder and any Modifications, including all related intellectual property rights. No rights are granted to you hereunder other than as expressly set forth above in this Agreement. You acknowledge and agree that the Recorder and all Documentation and the information in them represent Katalon’s confidential and proprietary information. You agree to keep all such information confidential by exercising the necessary care required to prevent its disclosure and not to disclose or use such information for any purpose whatsoever other than as expressly authorized by this Agreement.

The Recorder may include software licensed from third parties including open source software (collectively, “Third Party Software”), and such third parties may be third party beneficiaries of this Agreement with the ability to directly enforce the provisions pertaining to their Third Party Software. You shall comply with the additional license terms, restrictions and conditions (including notices) pertaining to Third Party Software that accompany the Recorder or which Katalon makes available via the Documentation (“Third Party Terms”). To the extent the Third Party Terms conflict with this Agreement, then the Third Party Terms will control solely with respect to the Third Party Software to which they apply.

Your license to the Recorder and Documentation terminates immediately upon the earlier to occur of the following: (a) when you stop using the Recorder, or (b) upon your breach of any of the terms contained in this Agreement. Upon termination for any reason, you shall immediately destroy all copies of the Recorder and any related Documentation in your possession or control.

The Recorder is provided free of charge and “as-is.” CONSEQUENTLY, KATALON MAKES NO, AND DISCLAIMS, ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

In no event will Katalon or its officers, directors, agents, and employees, be liable to you under this Agreement or otherwise, regardless of the form of claim or action, in an amount that exceeds $100. In no event will Katalon or its officers, directors, agents, and employees, be liable to you for consequential, exemplary, incidental, or indirect damages or costs (including legal fees and expenses) or loss of goodwill or profit in connection with the Recorder or this Agreement, even if Katalon has been advised of the possibility of such damages or costs. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so this paragraph may not apply to you.

COMMUNICATIONS. General questions and communications regarding the Recorder and Documentation can be made via the means provided at https://forum.katalon.com/. Any notices to Katalon regarding this Agreement should be made to info@katalon.com.

This Agreement is governed by the laws of the state of Georgia, USA, without regard to choice or conflicts of law rules. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. The official language of this Agreement is English. All contract interpretations, notices and dispute resolutions shall be in English. Translations of any of these documents are not to be construed as official or original versions of the documents.

No action arising out of this Agreement, regardless of form, may be brought by you more than one year after the date the cause of action has accrued.

The Recorder may be subject to export laws and regulations of the United States and other jurisdictions. You represent that you as an individual and your organization are not named on any U.S. government denied-party list. You shall not use or export the Recorder in violation of any U.S. export law or regulation.

The following applies to all acquisitions of the Recorder and Documentation by or for the U.S. government or by any prime contractor or subcontractor under any contract, grant or other activity with the U.S. government. The Recorder and Documentation and services utilizing the Recorder and Documentation provided under this Agreement are “commercial items” as that term is defined at 48 C.F.R. 2.101 consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and other applicable acquisition regulations and are provided to the U.S. Government only as a commercial item. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202, all U.S. Government users and licensees acquire the Recorder and its associated services and Documentation with only those rights and subject to the restrictions set forth in this Agreement. Notwithstanding the foregoing, the Recorder and its associated services and Documentation may not be acquired by the U.S. government pursuant to a contract incorporating clauses prescribed by FAR Subpart 27.4 or DFARS Subpart 227.4.

The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third-party beneficiaries to this Agreement. No waiver or modification of any provision of this Agreement will be effective unless it is in writing, refers to this Agreement, and is signed by authorized representatives of the parties. No failure or delay by either party to exercise any right, power, or remedy constitutes a waiver of that right, power, or remedy. A party’s waiver of the performance of any covenant or any breach is not to be construed as a waiver of any succeeding breach or of any other covenant. If any provision of this Agreement requires judicial interpretation, this Agreement is not to be more strictly construed against one party than the other. If any provision of this Agreement is declared invalid by a court of competent jurisdiction, the provision will be ineffective only to the extent of the invalidity, so that the remainder of that provision and all remaining provisions of this Agreement will continue in full force and effect. You may not assign, sublicense, or transfer this Agreement without the prior written consent of Katalon. Any attempt by you to sublicense, assign or transfer any rights, duties, or obligations hereunder is null and void.

The following terms of use “Terms of Use” apply to the Katalon Store made available at www.store.katalon.com (the “Katalon Store”) by Katalon, Inc. (“Katalon”, “we”, or “us”) and govern your use of the Katalon Store. Please review the following Terms of Use regarding your use of the Katalon Store. If you don’t agree with these Terms of Use, please do not use the Katalon Store.

We may update the Terms of Use from time to time. Please regularly check the Katalon Store for information about revisions to the Terms of Use. By continuing to use the Katalon Store after we make a change to the Terms of Use, you accept the updated provisions in the Terms of Use.

The Terms of Use were last modified on February 22 , 2019.

If you are purchasing at the Katalon Store on behalf of a corporation or other legal entity (“organization”), then (i) except as indicated, all references to “you” in these Terms of Use after this paragraph mean the organization, and (ii) for purposes of making purchases through the Katalon Store and conducting activities at the Katalon Store, you represent and warrant (x) that you are currently employed by the organization and have the authority and legal ability to bind the organization with respect to these Terms of Use, and (y) the organization agrees to be bound by all of the Terms of Use.

In order to make purchases or acquire the Offerings through the Katalon Store, you must register for an account on the Katalon Web site. Please go to katalon.com in order to register for your Katalon account if you have not done so.

Katalon makes available the Katalon Store in order for you to purchase the following types of offerings through Katalon:

“Katalon Studio” means the Katalon Studio product.

“Katalon Plugins” means plugins provided by Katalon that work with Katalon products.

“Other Katalon Offerings” means training, support or products and services other than Katalon Plugins provided by Katalon that are made available via the Katalon Web site.

“Third Party Plugins” means plugins provided by a Third Party Provider that work with Katalon Studio.

“Other Third Party Offerings” means products or services other than Third Party Plugins, that are provided by a Third Party Provider.

A “Third Party Provider” is anyone other than Katalon who provides an Offering via the Katalon Store.

“Katalon Offerings” means the Katalon Studio, Katalon Plugins and Other Katalon Offerings. “Third Party Offerings” means the Third Party Plugins and Other Third Party Offerings. “Offerings” means Third Party Offerings, Katalon Offerings or both.

When you purchase or otherwise obtain an Offering through the Katalon Store, the Offering will appear in your Katalon account. In the case of Katalon Plugins and Third Party Plugins, you should refresh your list of plugins in your copy of Katalon Studio and the newly-obtained Katalon Plugin or Third Party Plugin should load.

The terms of use for the Katalon Web site (katalon.com) apply to the Katalon Store as well, and you must comply with them when using the Katalon Store (but if these Terms of Use conflict with those terms of use for the Katalon Web site, these Terms of Use will control regarding your use of the Katalon Store).

You may not attempt to gain unauthorized access to the Katalon Store or its Offerings or circumvent any security measures used by the Katalon Store.

Katalon Plugins. Use of each Katalon Plugin are subject to the Katalon Plugin license agreement that accompanies the Katalon Plugin or is made available during its download. Unless otherwise set forth in the applicable Katalon Plugin license agreement, Katalon Plugins are only available for use along with your use of Katalon Studio. The standard Katalon Plugin license agreement is available at katalon.com/terms#plugin-license-agreement.

Other Katalon Offerings. The Other Katalon Offerings are subject to the agreement that Katalon makes available when you order the product or service or that accompany them.

Third Party Offerings. Katalon is a reseller of the Third Party Offerings at the Katalon Store. This means you pay Katalon for the Third Party Offering, but the Third Party Provider is responsible for providing the Third Party Offering. You acknowledge and agree Katalon is not responsible for Third Party Offerings or performance of any Third Party Provider, and this includes the functionality, performance, security, and reliability of the Third Party Offerings. Katalon does not provide any support or maintenance for Third Party Offerings. Katalon is not a party to the agreement between you and the Third Party Provider for the Third Party Offering, and you agree you will look solely to the Third Party Provider of the Third Party Offering with respect to any issues with the Third Party Offering, any acts or omissions of the Third Party Provider and any information you provide to the Third Party Provider or that the Third Party Provider provides to you. The Third Party Provider may have its own privacy policies that govern its use of your data in connection with the Third Party Offering. These Terms of Use do not grant you any additional rights in the Third Party Offerings.

Not for Resale. You may only purchase or otherwise obtain Offerings for use by you or your organization and not for resale.

Change in Offerings. Katalon may add, remove or change the Offerings at the Katalon Store at any time.

You will pay Katalon for each Offering you purchase at the price in the Katalon Store. You will indicate your method of payment from among the available options at the time of checkout and provide Katalon all relevant information necessary to complete payment.

Katalon reserves the right to reject all or part of a purchase for reasons such as: (a) if we detect suspicious or fraudulent activity; (b) if you do not live in a country where Offerings may be purchased or delivered; or (c) if you violate these Terms of Use.

If you are paying by credit card, you authorize Katalon to bill the fees to the credit card number you provide when they are due. Katalon’s acceptance of a credit card does not relieve you from any obligation to pay for the Offering. Katalon may invoice you for amounts due if credit card payment is not effective for any reason.

If Katalon will invoice you for fees, then you shall pay any invoice within 30 days of the date of invoice. You shall pay interest in the greater of 1.5% per month or the highest amount allowed by law on any amounts not received when due.

Applicable taxes will be presented at checkout or on the page describing the Offering; however, taxes are estimated and may be subject to change until you are charged.

You are responsible for all purchases made through your account at the Katalon Store. All sales are final and fees are nonrefundable unless otherwise explicitly stated at the time of sale.

If you experience a problem with payment for a transaction through the Katalon Store, please contact us at payment@katalon.com.

You should not contact us through this address for support or other issues with the Offering you purchased. You should contact the applicable vendor of the Offering (whether Katalon or a Third Party Provider) via the means provided in the agreement you entered into for the Offering.

The Katalon Store permits you to review Plugins on the Katalon Store. Your ability to post reviews is subject to all of the following:

• You may not provide more than one review per Plugin.
• You are able to edit review that you post.
• Anonymous reviews are not permitted.
• You may not review any Plugin if you are the Third Party Provider of that Offering or are a competitor of that Third Party Provider unless you disclose that fact in your review.
• All reviews should be honest and polite.
• Katalon may edit or remove reviews for any reason, including ones that are off-topic, offensive, false, constitute advertising, or violate the rights of anyone.

Katalon has no obligation to monitor your use of the Katalon Store or retain the content of any of your reviews or interactions. However, Katalon reserves the right at all times to monitor, review, retain and/or disclose any information as necessary to satisfy any applicable law, regulation, legal process or government request.

Personal information submitted by you to us through the Katalon Store is treated according to the Katalon Site Privacy Policy available at katalon.com/terms#privacy-policy (“Privacy Policy”). Our Privacy Policy does not apply to other Web sites, and we will not have any liability for the information collection or dissemination policies of Third Party Providers. By using the Katalon Store, you agree you have read and understand the Privacy Policy, which is a condition to your use of the Katalon Store. You should not access or use the Katalon Store if you do not agree with the terms of the Privacy Policy.

We will use information you provide to us to complete transactions regarding the Store Offerings. You acknowledge and agree that information you submit to us through the Katalon Store, including your contact information, and credit card and payment information, may be provided to Third Party Providers as necessary to fulfill the Third Party Offerings and to provide support, handle disputes, and similar purposes related to their current or future relationship with you. We will also provide your contact information with Katalon company affiliates, including KMS Technology and KMS Solutions, for their use in providing or marketing relevant products or services to you.

USE OF YOUR NAME AND TRADEMARKS. You grant Katalon the nonexclusive, worldwide license to use your and your organization’s name, logos, and trademarks (“Your Marks”) to identify you as a Katalon user via the Katalon Store and otherwise. You retain all rights in Your Marks.

COMPLIANCE WITH LAWS. You shall comply with applicable law regarding your use of the Katalon Store and any Offerings. The Offerings may be subject to export laws and regulations of the United States and other jurisdictions. You represent that you as an individual and your organization are not named on any U.S. government denied-party list. You shall not use or export the Offerings in violation of any U.S. export law or regulation.

YOUR INDEMNIFICATION. You shall defend, indemnify and hold harmless Katalon, its affiliates and its and their officers, directors, employees, agents, successors and assigns from and against any and all losses, costs, expenses (including attorneys’ fees and expenses), claims, liabilities, and damages of any kind incurred by those persons or entities which result from your violation of these Terms of Use or any agreement you enter into for an Offering.

TERMINATION OR SUSPENSION. Katalon may suspend or terminate your access to the Katalon Store for any violation of the Terms of Use or any agreement for an Offering. Katalon may also suspend your use of the Katalon Store if Katalon reasonably believes that your activity is harming the Katalon Store or the rights or property of any person. Katalon will notify you if it terminates your access to the Katalon Store but otherwise Katalon may exercise the suspension in this Section without prior written notice to you.

THE KATALON STORE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. KATALON HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH REGARD TO THE SITE AND ALL CONTENT, INCLUDING ALL WARRANTIES, IMPLIED OR EXPRESS, OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.

The agreements you enter into regarding the Offerings may have their own disclaimers and limitations of liability which will control with respect to the Offering, so you should read those carefully.

UNLESS OTHERWISE LIMITED IN THE APPLICABLE AGREEMENT REGARDING AN OFFERING YOU OBTAIN, THE TOTAL LIABILITY OF KATALON, ITS AFFILIATES AND ITS OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES, TO YOU REGARDING ANY OFFERING WILL NOT EXCEED THE AMOUNT YOU PAID KATALON FOR THAT OFFERING. OTHERWISE, KATALON, ITS AFFILIATES AND ITS OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES ARE NOT LIABLE UNDER THESE TERMS OF USE OR OTHERWISE IN AN AMOUNT THAT EXCEEDS $100. THIS LIMITATION APPLIES REGARDLESS OF THE FORM OF CLAIM OR ACTION

IN NO EVENT WILL KATALON, ITS AFFILIATES OR ITS OR THEIR OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES, BE LIABLE TO YOU FOR CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES OR COSTS (INCLUDING LEGAL FEES AND EXPENSES) OR LOSS OF GOODWILL OR PROFIT IN CONNECTION WITH THE OFFERING OR THIS AGREEMENT, EVEN IF KATALON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so this paragraph may not apply to you.

We respect the intellectual property of others, and we ask you to do the same. If you believe some Offerings at the Katalon Store constitute copyright infringement, please contact our representative designated below. In your notification to us, please include the following information:

• a physical or electronic signature of a person authorized to act on behalf of the owner;
• identification of the copyrighted work(s) claimed to have been infringed;
• identification of the material that is claimed to be infringing (with information reasonably sufficient for us to locate the material);
• your address, telephone number, and, if available, an email address at which you may be contacted.
• a statement of good faith belief that use of the material in the manner complained of is not authorized by the copyright owner; and
• a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the copyright owner.

GOVERNING LAW. These Terms of Use are governed by the laws of the state of Georgia, USA, without regard to choice or conflicts of law rules. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms of Use or the purchases made under them. The official language of these Terms of Use is English. All contract interpretations, notices and dispute resolutions shall be in English. Translations of any of these documents are not to be construed as official or original versions of the documents.

(a) If you are a resident of, or a company organized under a state or territory of, the United States, then all disputes regarding these Terms of Use will be settled exclusively in any court of competent jurisdiction located in Fulton County, Georgia. Each party hereby consents and submits to the in personam jurisdiction of such courts. Each party hereby waives any objection based on forum non conveniens and any objection to venue of any action instituted under these Terms of Use to the extent that an action is brought in the courts identified above.

(b) Otherwise, all disputes regarding these Terms of Use shall be finally resolved by binding arbitration before a single arbitrator pursuant to the then-existing Rules of Conciliation and Arbitration (“Rules”), and under the auspices, of the International Chamber of Commerce (“ICC”). The arbitrator shall be knowledgeable in the chosen law and the software industry. At either party’s request, the arbitrator shall give a written opinion stating the factual basis and legal reasoning for the decision. The arbitrator shall have the authority to determine issues of arbitrability and to award damages as permitted by these Terms of Use. The parties, their representatives, and any other participants shall hold the existence, content, and result of arbitration in confidence. The arbitration proceedings will take place in Atlanta, Georgia. Judgment on the arbitration award may be entered in any court having jurisdiction.

(c) Notwithstanding the foregoing, Katalon may, at its sole discretion, seek preliminary judicial relief in any court of competent jurisdiction (including, but not limited to, preliminary injunctive relief) as necessary to enforce its rights in its intellectual property.

LIMITATION OF ACTIONS. No action arising out of these Terms of Use, regardless of form, may be brought by you more than one year after the date the cause of action has accrued.

AGE RESTRICTIONS. The Katalon Store is designed for persons 18 years of age or older. Please do not access or use the Katalon Store if you are under 18.

U.S. GOVERNMENT END USE PROVISIONS. The following applies to all acquisitions through the Katalon Store of the Offerings by or for the U.S. government or by any prime contractor or subcontractor under any contract, grant or other activity with the U.S. government. The Offerings are “commercial items” as that term is defined at 48 C.F.R. 2.101 and software Offerings are “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and other applicable acquisition regulations. All Offerings are provided to the U.S. Government only as a commercial item. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202, all U.S. Government users and licensees acquire the Offerings with only those rights and subject to the restrictions set forth in the applicable agreements that accompany the Offerings. Notwithstanding the foregoing, the Offerings may not be acquired by the U.S. government through the Katalon Store pursuant to a contract incorporating clauses prescribed by FAR Subpart 27.4 or DFARS Subpart 227.4.

TRADEMARKS. All trademarks, service marks, or registered trademarks are the property of their respective owners. Reference to, description of or use of a product, service, publication or process on the Katalon Store does not imply recommendation, approval, affiliation, or sponsorship of that product, service, publication or process by Katalon.

CONTACT INFORMATION. All questions, concerns or communications regarding these Terms of Use should be directed to info@katalon.com.

You should carefully read the following terms and conditions before installing the plugin that accompanies this license (“Plugin”) developed by Katalon, Inc. (“Katalon”). By clicking the [“Accept and install”] button and proceeding to install and use the Plugin, you acknowledge your acceptance of the terms and conditions of this License Agreement (“Agreement”). Clicking the [“Accept and install”] button is a legally valid way to create a binding contract and constitutes your electronic signature to this Agreement.

If you are entering into this Agreement on behalf of a corporation or other legal entity (“organization”), then (i) except as indicated, all references to “you” in this Agreement after this paragraph shall mean the organization, and (ii) by clicking the [“Accept and install”] button you represent and warrant (x) that you are currently employed by the organization and have the authority and legal ability to enter into this Agreement on behalf of the organization, and (y) the organization agrees to be bound by all of the terms of this Agreement.

If you do not agree to the terms and conditions of this Agreement, then do not install the Plugin.

Copies of this agreement are available for download and printing by using current web browser software and going to https://store.katalon.com/ (the “Katalon Store”).

The Plugins are provided free of charge. This is a license and not a sale. The Plugin with which this Agreement is provided is licensed to you under the following terms and conditions which define what you can and cannot do with the Plugin. This Agreement comprises the entire agreement between you and Katalon, and supersedes any other agreement, terms or promises, oral or written, with respect to the subject matter of this Agreement.

INTRODUCTION. “Katalon Studio” is Katalon’s test automation software for API, web, and mobile testing which is available via the Katalon Store. The Plugins are designed to be used with your permitted use of Katalon Studio only. There is a separate license for Katalon Studio which you must enter into in order to use Katalon Studio.

LICENSE. Subject to the terms and conditions of this Agreement, Katalon grants you a nonexclusive, nontransferable, nonsublicensable license to use the Plugin solely on your computers as part of your permitted use of Katalon Studio. A “Client” means a person or entity who receives your testing services and the resulting output and who has separately installed and licensed the Plugin from Katalon. Use of the Plugin is limited to use in object-code form only. If you are an organization, then your use of the Plugin includes use by your Affiliates (as defined below) and will be considered part of “you” and “your organization”, subject to all provisions of this Agreement and the following (a) you are responsible for each of your Affiliates’ compliance with this Agreement and will be jointly and severally liable with each of the Affiliates for any breach of the provisions of this Agreement, and (b) the entity may not use the Plugin under your license once it stops being an Affiliate. As used herein, an “Affiliate” means any entity that controls, is controlled by, or is under common control with you, where “control” means ownership of at least 50% of the voting stock of such entity. You may permit your independent contractors and supplemental personnel (collectively “Contractors”) to use the Plugin on your behalf solely as necessary to provide you services, subject to the following: (a) any such use is subject to the terms and conditions of this Agreement, (b) you are responsible for each of your Contractors’ compliance with this Agreement, and (c) each Contractor must be subject to obligations of confidentiality at least as protective of the Plugin, Documentation and Katalon as those in this Agreement. You may also use the documentation that accompanies the Plugin or is may be made available at https://docs.katalon.com (the “Documentation”) solely in connection with your use of the Plugin. You may make a reasonable number of copies of the Plugin and Documentation in connection with your use. This license only applies to the version of the Plugin you have installed and not any future versions.

LIMITATIONS. You may not access the Plugin if you are or become Katalon’s direct competitor, except with Katalon’s prior written consent. Your use of the Plugin is limited to use within Katalon Studio and is conditioned upon you having a valid, current license to Katalon Studio. With respect to your use of the Plugin for Clients as permitted above, you may not provide access or use of your copies of the Plugin to the Client or include the Plugin as part of a product, service or other offering you provide to the Client. In addition, you must verify that the Client has its own copy of the Plugin. You may not use the Plugin for purposes of monitoring the Plugin’s performance or functionality or for any other benchmarking or competitive purposes. You acknowledge and agree that the Plugin and all Documentation and the information in them represent Katalon’s confidential and proprietary information. You agree to keep all such information confidential by exercising the necessary care required to prevent its disclosure and not to disclose or use such information for any purpose whatsoever other than as expressly authorized by this Agreement. You agree not to misuse Katalon’s API or attempt to circumvent security measures.

RESERVATION OF RIGHTS. Except for the limited rights expressly granted above in this Agreement, Katalon reserves all rights, title and interest in and to the Plugin, including all related intellectual property rights. No rights are granted to you hereunder other than as expressly set forth above in this Agreement. Without limiting the generality of the foregoing, you may not (a) distribute outside your organization, sublicense, copy, modify, or publicly display the Plugin, (b) except for the limited use for Clients described above and Contractors as permitted above, use on behalf of any third party, or permit any third party to use, the Plugin, (c) decompile or reverse engineer the Plugin; (d) remove any proprietary rights notices on the Plugin, or (e) attempt to gain unauthorized access to the Plugin or circumvent any security measures within the Plugin. If you believe you are entitled to reverse engineer the Plugin because of rights that may be granted as a matter of local law, such as the Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs (as amended), then (1) you shall first request the technical information from Katalon, (2) this technical information may be used only for the purposes of ensuring interoperability and compatibility, and (2) the technical information will be considered Katalon Information and treated as such according to the terms set forth in this Agreement.

SUPPORT. Katalon provides general support for the Plugin through online support Documentation, tutorials and discussion forums at https://forum.katalon.com. Use of these resources is subject to the terms of use and privacy policy available on the Web site. Support may include new updates or new versions of the Plugin that Katalon makes generally available to its customers; however, the license in this Agreement does not apply to versions of the Plugin for which Katalon charges a license fee. In addition, Katalon may exclude certain releases or versions that contain different functionality or are not offered across Katalon’s customer base as a whole or releases which are licensed with additional or new license terms to meet additional business or legal requirements of Katalon. Katalon may discontinue support for the Plugin at any time.

SUGGESTIONS. You grant Katalon a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Plugin any suggestions, enhancement requests, recommendations or other feedback provided by you, relating to the Plugin (“Feedback”). Katalon may use and incorporate any Feedback without any compensation or acknowledgment to you.

TERMINATION. Your license to the Plugin and Documentation terminates immediately upon the earlier to occur of the following: (a) when you stop using the Plugin, (b) upon your breach of any of the terms contained in this Agreement, or (c) upon termination of your Katalon Studio license. Upon termination for any reason, you shall immediately destroy all copies of the Plugin and any related Documentation in your possession or control. However, you may retain the test scripts, related reports, and other data you generated using the Plugin.

DISCLAIMERS. KATALON MAKES NO, AND DISCLAIMS, ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. Without limiting the foregoing, you agree that Katalon and its officers, directors, agents, and employees, shall have no liability for errors or omissions in the output of the Plugin, such outputs including, without limitation, the quality or accuracy of any screen displays or reports, in the transmission and reception of data, or in the processing of such data by the Plugin.

LIMITATION OF LIABILITY. IN NO EVENT WILL KATALON OR ITS OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES, BE LIABLE TO YOU UNDER THIS AGREEMENT OR OTHERWISE, REGARDLESS OF THE FORM OF CLAIM OR ACTION, IN AN AMOUNT THAT EXCEEDS $100. IN NO EVENT WILL KATALON OR ITS OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES, BE LIABLE TO YOU FOR CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES OR COSTS (INCLUDING LEGAL FEES AND EXPENSES) OR LOSS OF GOODWILL OR PROFIT IN CONNECTION WITH THE PLUGIN OR THIS AGREEMENT, EVEN IF KATALON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so this paragraph may not apply to you.

COMMUNICATIONS. General questions and communications regarding the Plugin and Documentation can be made via the means provided at https://forum.katalon.com/. Any notices to Katalon regarding this Agreement should be made to info@katalon.com. Katalon may contact and notify you at the email address you provided as part of your Katalon account. You are required to keep your contact information current. Contact information you provided may be stored and used by Katalon in accordance with its Privacy Policy available at https://katalon.com/terms#privacy-policy and you consent to these uses.

GOVERNING LAW AND LANGUAGE. This Agreement is governed by the laws of the state of Georgia, USA, without regard to choice or conflicts of law rules. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. The official language of this Agreement is English. All contract interpretations, notices and dispute resolutions shall be in English. Translations of any of these documents are not to be construed as official or original versions of the documents.

(a) If you are a resident of, or a company organized under a state or territory of, the United States, then all disputes regarding this Agreement will be settled exclusively in any court of competent jurisdiction located in Fulton County, Georgia. Each party hereby consents and submits to the in personam jurisdiction of such courts. Each party hereby waives any objection based on forum nonconveniens and any objection to venue of any action instituted under this Agreement to the extent that an action is brought in the courts identified above.

(b) Otherwise, all disputes regarding this Agreement shall be finally resolved by binding arbitration before a single arbitrator pursuant to the then-existing Rules of Conciliation and Arbitration (“Rules”), and under the auspices, of the International Chamber of Commerce (“ICC”). The arbitrator shall be knowledgeable in the chosen law and the Plugin industry. At either party’s request, the arbitrator shall give a written opinion stating the factual basis and legal reasoning for the decision. The arbitrator shall have the authority to determine issues of arbitrability and to award damages as permitted by this Agreement. The parties, their representatives, and any other participants shall hold the existence, content, and result of arbitration in confidence. The arbitration proceedings will take place in Atlanta, Georgia. Judgment on the arbitration award may be entered in any court having jurisdiction.

(c) Notwithstanding the foregoing, Katalon may, at its sole discretion, seek preliminary judicial relief in any court of competent jurisdiction (including, but not limited to, preliminary injunctive relief) as necessary to enforce its rights in its intellectual property.

LIMITATION OF ACTIONS. No action arising out of this Agreement, regardless of form, may be brought by you more than one year after the date the cause of action has accrued.

EXPORT COMPLIANCE. The Plugin may be subject to export laws and regulations of the United States and other jurisdictions. You represent that you as an individual and your organization are not named on any U.S. government denied-party list. You shall not use or export the Plugin in violation of any U.S. export law or regulation.

U.S. GOVERNMENT END-USE PROVISIONS. The following applies to all acquisitions of the Plugin and Documentation by or for the U.S. government or by any prime contractor or subcontractor under any contract, grant or other activity with the U.S. government. The Plugin and Documentation and services utilizing the Plugin and Documentation provided under this Agreement are “commercial items” as that term is defined at 48 C.F.R. 2.101 consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and other applicable acquisition regulations and are provided to the U.S. Government only as a commercial item. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202, all U.S. Government users and licensees acquire the Plugin and its associated services and Documentation with only those rights and subject to the restrictions set forth in this Agreement. Notwithstanding the foregoing, the Plugin and its associated services and Documentation may not be acquired by the U.S. government pursuant to a contract incorporating clauses prescribed by FAR Subpart 27.4 or DFARS Subpart 227.4.

MISCELLANEOUS. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third-party beneficiaries to this Agreement. No waiver or modification of any provision of this Agreement will be effective unless it is in writing, refers to this Agreement, and is signed by authorized representatives of the parties. No failure or delay by either party to exercise any right, power, or remedy constitutes a waiver of that right, power, or remedy. A party’s waiver of the performance of any covenant or any breach is not to be construed as a waiver of any succeeding breach or of any other covenant. If any provision of this Agreement requires judicial interpretation, this Agreement is not to be more strictly construed against one party than the other. If any provision of this Agreement is declared invalid by a court of competent jurisdiction, the provision will be ineffective only to the extent of the invalidity, so that the remainder of that provision and all remaining provisions of this Agreement will continue in full force and effect. You may not assign, sublicense, or transfer this Agreement without the prior written consent of Katalon. Any attempt by you to sublicense, assign or transfer any rights, duties, or obligations hereunder is null and void.

You should carefully read the following terms and conditions before installing the plugin for Katalon Studio that accompanies this license (“Plugin”) developed by the person or entity indicated ____ (“Licensor”). By clicking the [“Accept and install”] button and proceeding to install and use the Plugin, you acknowledge your acceptance of the terms and conditions of this License Agreement (“Agreement”). Clicking the [“Accept and install”] button is a legally valid way to create a binding contract and constitutes your electronic signature to this Agreement.

If you are entering into this Agreement on behalf of a corporation or other legal entity (“organization”), then (i) except as indicated, all references to “you” in this Agreement after this paragraph shall mean the organization, and (ii) by clicking the [“Accept and install”] button you represent and warrant (x) that you are currently employed by the organization and have the authority and legal ability to enter into this Agreement on behalf of the organization, and (y) the organization agrees to be bound by all of the terms of this Agreement.

If you do not agree to the terms and conditions of this Agreement, then do not install the Plugin.

Copies of this agreement are available for download and printing by using current web browser software and going to katalon.com/terms#standard-plugin-license-agreement.

This is a license and not a sale. The Plugin with which this Agreement is provided is licensed to you under the following terms and conditions which define what you can and cannot do with the Plugin. This Agreement comprises the entire agreement between you and Licensor, and supersedes any other agreement, terms or promises, oral or written, with respect to the subject matter of this Agreement.

“Katalon Studio” is Katalon’s test automation software for API, web, desktop and mobile testing which is available via the Katalon Store. The Plugins are designed to be used with your permitted use of Katalon Studio only. There is a separate license for Katalon Studio which you must enter into in order to use Katalon Studio.

Subject to the terms and conditions of this Agreement, Licensor grants you a nonexclusive, nontransferable, nonsublicensable license to use the Plugin solely on your computers as part of your permitted use of Katalon Studio. You may also use the documentation that accompanies the Plugin or is may be made available at https://docs.katalon.com (the “Documentation”) solely in connection with your use of the Plugin. You may make a reasonable number of copies of the Plugin and Documentation in connection with your use. This license only applies to the version of the Plugin you have installed and not any future versions.

If you have obtained the Plugin on a trial basis, the Plugin may be used on a trial basis for a period of 14 days from the date of download (“Trial Period”). At the end of the Trial Period unless you purchase the full license to the Plugin, the Plugin will stop working, the license will terminate and you shall remove and delete all copies the Plugin in accordance with the terms of this Agreement. If you purchase the full version, you will need to refresh the plugin list in your copy of Katalon Studio in order to complete activation of the full version. If the Plugin you have downloaded is made available without charge, then this section does not apply.

You will pay the fees for use of the Plugin in accordance with the terms of the Katalon Store. All fees are nonrefundable.

You may not access the Plugin if you are or become Katalon’s direct competitor, except with Katalon’s prior written consent. Your use of the Plugin is limited to use within Katalon Studio and is conditioned upon you having a valid, current license to Katalon Studio. You may not use the Plugin for purposes of monitoring the Plugin’s performance or functionality or for any other benchmarking or competitive purposes. You acknowledge and agree that the Plugin and all Documentation and the information in them represent Licensor’s and/or its licensors’ confidential and proprietary information. You agree to keep all such information confidential by exercising the necessary care required to prevent its disclosure and not to disclose or use such information for any purpose whatsoever other than as expressly authorized by this Agreement.

Except for the limited rights expressly granted above in this Agreement, Licensor on behalf of itself and its licensors reserves all rights, title and interest in and to the Plugin, including all related intellectual property rights. No rights are granted to you hereunder other than as expressly set forth above in this Agreement. Without limiting the generality of the foregoing, you may not (a) distribute outside your organization, sublicense, copy, modify, or publicly display the Plugin, (b) use on behalf of any third party, or permit any third party to use, the Plugin, (c) decompile or reverse engineer the Plugin; (d) remove any proprietary rights notices on the Plugin, or (e) attempt to gain unauthorized access to the Plugin or circumvent any security measures within the Plugin. If you believe you are entitled to reverse engineer the Plugin because of rights that may be granted as a matter of local law, such as the Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs (as amended), then (1) you shall first request the technical information from Licensor, (2) this technical information may be used only for the purposes of ensuring interoperability and compatibility, and (2) the technical information will be considered Licensor’s confidential information and treated as such according to the terms set forth in this Agreement.

Any support for the Plugin will be provided separately by the Licensor to you in accordance with Licensor’s policies, which may include entry into a separate agreement.

Your license to the Plugin and Documentation terminates immediately upon the earlier to occur of the following: (a) when you stop using the Plugin, (b) upon your breach of any of the terms contained in this Agreement, or (c) upon termination of your Katalon Studio license. Upon termination for any reason, you shall immediately destroy all copies of the Plugin and any related Documentation in your possession or control. However, you may retain the test scripts, related reports, and other data you generated using the Plugin.

LICENSOR AND KATALON MAKE NO, AND DISCLAIMS, ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. Without limiting the foregoing, you agree that Licensor, Katalon and their officers, directors, agents, and employees, shall have no liability for errors or omissions in the output of the Plugin, such outputs including, without limitation, the quality or accuracy of any screen displays or reports, in the transmission and reception of data, or in the processing of such data by the Plugin.

IN NO EVENT WILL LICENSOR, KATALON OR THEIR OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES, BE LIABLE TO YOU UNDER THIS AGREEMENT OR OTHERWISE, REGARDLESS OF THE FORM OF CLAIM OR ACTION, IN AN AMOUNT THAT EXCEEDS THE GREATER OF (A) THE FEES YOU HAVE PAID FOR THE PLUGIN OR (B) $100. IN NO EVENT WILL LICENSOR, KATALON OR THEIR OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES, BE LIABLE TO YOU FOR CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES OR COSTS (INCLUDING LEGAL FEES AND EXPENSES) OR LOSS OF GOODWILL OR PROFIT IN CONNECTION WITH THE PLUGIN OR THIS AGREEMENT, EVEN IF THOSE PERSONS OR ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so this paragraph may not apply to you.

Communications regarding the Plugin and Documentation can be made via the means provided by the Licensor. Licensor may contact and notify you at the email address you provided as part of your Katalon account. You are required to keep your contact information current.

This Agreement is governed by the laws of the state of Georgia, USA, without regard to choice or conflicts of law rules. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. The official language of this Agreement is English. All contract interpretations, notices and dispute resolutions shall be in English. Translations of any of these documents are not to be construed as official or original versions of the documents.

Licensor is not an agent or employee of Katalon and is not responsible for the Plugin and all the license grants and obligations in this Agreement are solely Licensor’s responsibility. Nothing in this Agreement grants you any rights in Katalon products or services. You hereby release Katalon, its affiliate and its and their respective agents, assigns, attorneys, accountants, employees, officers, directors, successors, predecessors, representatives from any all charges, complaints, claims, liabilities, obligations, promises, agreements, controversies, demands, damages, actions, causes of action or suits of any kind or nature whatsoever, whether known or unknown, accrued or unaccrued, related to the Plugins. However, you acknowledge that Katalon is a third party beneficiary of this Agreement.

No action arising out of this Agreement, regardless of form, may be brought by you more than one year after the date the cause of action has accrued.

The Plugin may be subject to export laws and regulations of the United States and other jurisdictions. You represent that you as an individual and your organization are not named on any U.S. government denied-party list. You shall not use or export the Plugin in violation of any U.S. export law or regulation.

The following applies to all acquisitions of the Plugin and Documentation by or for the U.S. government or by any prime contractor or subcontractor under any contract, grant or other activity with the U.S. government. The Plugin and Documentation and services utilizing the Plugin and Documentation provided under this Agreement are “commercial items” as that term is defined at 48 C.F.R. 2.101 consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and other applicable acquisition regulations and are provided to the U.S. Government only as a commercial item. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202, all U.S. Government users and licensees acquire the Plugin and its associated services and Documentation with only those rights and subject to the restrictions set forth in this Agreement. Notwithstanding the foregoing, the Plugin and its associated services and Documentation may not be acquired by the U.S. government pursuant to a contract incorporating clauses prescribed by FAR Subpart 27.4 or DFARS Subpart 227.4.

The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third-party beneficiaries to this Agreement. No waiver or modification of any provision of this Agreement will be effective unless it is in writing, refers to this Agreement, and is signed by authorized representatives of the parties. No failure or delay by either party to exercise any right, power, or remedy constitutes a waiver of that right, power, or remedy. A party’s waiver of the performance of any covenant or any breach is not to be construed as a waiver of any succeeding breach or of any other covenant. If any provision of this Agreement requires judicial interpretation, this Agreement is not to be more strictly construed against one party than the other. If any provision of this Agreement is declared invalid by a court of competent jurisdiction, the provision will be ineffective only to the extent of the invalidity, so that the remainder of that provision and all remaining provisions of this Agreement will continue in full force and effect. You may not assign, sublicense, or transfer this Agreement without the prior written consent of Licensor. Any attempt by you to sublicense, assign or transfer any rights, duties, or obligations hereunder is null and void.

You should carefully read the following terms and conditions before installing the Katalon Plugin development assets (“Development Package”) developed by Katalon, Inc. (“Katalon”). By installing and using the Development Package, you acknowledge your acceptance of the terms and conditions of this Katalon Developer Agreement (“Agreement”).

If you are entering into this Agreement on behalf of a corporation or other legal entity (“organization”), then (i) except as indicated, all references to “you” in this Agreement after this paragraph shall mean the organization, and (ii) by clicking the [“Accept and install”] button you represent and warrant (x) that you are currently employed by the organization and have the authority and legal ability to enter into this Agreement on behalf of the organization, and (y) the organization agrees to be bound by all of the terms of this Agreement.

If you do not agree to the terms and conditions of this Agreement, then do not access or use the Development Package.

Copies of this agreement are available for download and printing by using current web browser software and going to katalon.com/terms#developer-agreement.

This is a license and not a sale. The Development Package with which this Agreement is provided is licensed to you under the following terms and conditions which define what you can and cannot do with the Development Package. This Agreement comprises the entire agreement between you and Katalon, and supersedes any other agreement, terms or promises, oral or written, with respect to the subject matter of this Agreement.

INTRODUCTION. “Katalon Studio” is Katalon’s test automation software for API, web, desktop and mobile testing and is available via the Katalon website. The Development Package located at https://katalon.com/development-package/ which consists of certain libraries, Katalon plugin framework, sample projects, and custom keywords that are made available to assist developers in creating plugins that work with Katalon Studio (“Plugins”). These Plugins are made available to Katalon Studio users via the Katalon Store located at https://store.katalon.com/ (“Katalon Store”).

CHANGES TO AGREEMENT. Katalon may change the terms of this Agreement. If it does so, then it will either notify you at the email address you have provided or require you to click through the amended Agreement in order to continue using the Development Package. Your acceptance of the amended Agreement will be effective on the first to occur of (a) your acceptance via the clickthrough or (b) your continued use of the Development Package after receipt of the notification. If you do not accept the amended Agreement, then this Agreement will automatically terminate.

REGISTRATION. You must register with Katalon via the Katalon Web site and have a Katalon account to download the Development Package.

PLUGIN GUIDELINES. Katalon makes available guidelines for Plugin development here https://docs.katalon.com/katalon-store/docs/overview.html (“Plugin Guidelines”). Please read the Plugin Guidelines before using the Development Package. You must comply with the Plugin Guidelines in your creation of Plugins and use of the Development Package. The Plugin Guidelines will help you create Plugins that Katalon may approve for use with Katalon Studio. Katalon may refuse to approve the use of Plugins with Katalon Studio in Katalon’s sole discretion.

LICENSE. Subject to the terms and conditions of this Agreement, Katalon grants you a nonexclusive, nontransferable, nonsublicensable license to use the Development Package solely to create Plugins in accordance with the Plugin Guidelines. This license only applies to the version of the Development Package you have installed and not any future versions. You may not distribute any component of the Development Package with your Plugins or otherwise, unless there is a separate license agreement for the component that permits you to do so.

THIRD PARTY COMPONENTS. The Development Package may contain software and materials licensed from third parties (“Third Party Products”) and such third parties may be third party beneficiaries to this Agreement with the ability to directly enforce the provisions pertaining to their Third Party Products. You may not use the Third Party Product except with the Development Package and shall comply with the additional license terms, restrictions and conditions (including notices) pertaining to Third Party Products that accompany the Development Package or which Katalon otherwise makes available to you (“Third Party Terms”). To the extent the Third Party Terms conflict with this Agreement, then the Third Party Terms will control solely with respect to the Third Party Product to which they apply. You shall notify Katalon before attempting to modify any Third Party Product, and any support from Katalon does not apply where the Third Party Product has been modified.

USE OF OPEN SOURCE AND THIRD PARTY MATERIALS. You may not use any open source software in connection with your use of the Development Package or development of your Plugin in a manner that would subject the Development Package, Katalon Studio or any Katalon plugin to the terms of any open source license or that would require the Development Package, Katalon Studio or any Katalon plugin, or any derivative work of any of them, to be made available in source code form or to be provided free of charge. If you include any open source software or any other third party materials in your Plugin, then you represent and warrant that (a) you have obtained all rights necessary to distribute and otherwise use such open source software and third party materials and (b) you will comply with the license and other terms and conditions applicable to such open source software and third party materials, including fulfilling all notice and distribution requirements. The Plugin Guidelines may have additional terms and conditions regarding your use of open source software and third party materials in creating Plugins.

LIMITATIONS AND CONDITIONS. You may not do any of the following:

• access or the Development Package if you are or become Katalon’s direct competitor, except with Katalon’s prior written consent;
• use the Development Package for any purpose other than development of the Plugins;
• use the Development Package for purposes of monitoring the Development Package’s performance or functionality or for any other benchmarking or competitive purposes;
• upload viruses, spyware, or other malware to the Katalon Store or include it within your Plugin;
• distribute outside your organization, sublicense, copy, modify, or publicly display the Development Package;
• use on behalf of any third party, or permit any third party to use, the Development Package;
• decompile or reverse engineer the Development Package;
• remove any proprietary rights notices on the Development Package;
• attempt to gain unauthorized access to the Development Package or circumvent any security measures within the Development Package.

If you believe you are entitled to reverse engineer the Development Package because of rights that may be granted as a matter of local law, such as the Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs (as amended), then (1) you shall first request the technical information from Katalon, (2) this technical information may be used only for the purposes of ensuring interoperability and compatibility, and (2) the technical information will be considered Katalon Information and treated as such according to the terms set forth in this Agreement.

CONFIDENTIALITY OF DEVELOPMENT PACKAGE. You acknowledge and agree that the Development Package and the documentation and other information contained in it are Katalon’s confidential and proprietary information. You agree to keep all such information confidential by exercising the necessary care required to prevent its disclosure and not to disclose or use such information for any purpose whatsoever other than as expressly authorized by this Agreement.

RESERVATION OF RIGHTS. Except for the limited rights expressly granted above in this Agreement, Katalon reserves all rights, title and interest in and to the Development Package, including all related intellectual property rights. No rights are granted to you hereunder other than as expressly set forth above in this Agreement.

SUPPORT. Katalon provides general support for the Development Package through online support documentation, tutorials and discussion forums at https://forum.katalon.com. Use of these resources is subject to the terms of use and privacy policy available on the Web site. Support may include new updates or new versions of the Development Package that Katalon makes generally available to its customers; however, the license in this Agreement does not apply to versions of the Development Package for which Katalon charges a license fee. In addition, Katalon may exclude certain releases or versions that contain different functionality or are not offered across Katalon’s customer base as a whole or releases which are licensed with additional or new license terms to meet additional business or legal requirements of Katalon. Katalon may discontinue support for the Development Package at any time.

CHANGES TO THE DEVELOPMENT PACKAGE. Katalon may make changes to the Development Package from time to time in its sole discretion. Newer versions of the Development Package may not work with Plugins developed on older versions of the Development Package.

YOUR PLUGINS. Nothing in this Agreements transfers to Katalon any title to your Plugins. You grant Katalon a royalty-free, worldwide, irrevocable, perpetual license to (i) make, use, sell, copy, perform, display, distribute, or otherwise utilize copies of the Plugins, (ii) prepare, use and distribute derivative works based upon the Plugins, and (iii) authorize others to do the same. Katalon or third parties may develop plugins that are similar to yours, and nothing in this Agreement prohibits Katalon or any third party from doing so.

MAKING AVAILABLE YOUR PLUGINS. Without limiting the foregoing, Katalon may make available your Plugins via the Katalon Store. You will indicate whether you will offer your Plugin under Katalon’s standard Store Plugin License which may be found at katalon.com/terms#standard-plugin-license-agreement or under your custom license agreement (“Your Plugin License Agreement”). If you want to use Your Plugin License Agreement you must get Katalon’s prior written approval before making your Plugin available under Your Plugin License Agreement. Notwithstanding any approval by Katalon, Your Plugin License Agreement must at a minimum do all of the following:

• be a legally enforceable agreement;
• not make any warranties, representations, promises or commitments on behalf of Katalon or otherwise bind Katalon in any way, and disclaim all implied warranties;
• disclaim all liability on behalf of Katalon;
• comply with all obligations with respect to any open source and third party materials you include in your Plugin;
• not grant any right or license in any Katalon Plugins, Katalon Studio, the Katalon Store or any other intellectual property of Katalon; and
• contain provisions describing how you use end user personal data in a manner that complies with applicable law and your privacy policy.

You may make your Plugins available outside the Katalon Store; however, Katalon only permits plugins obtained through the Katalon Store to be used with Katalon Studio. Katalon is not obligated to pay you for use or distribution of your Plugins unless you and Katalon agree pursuant to a separate, written plugin resale agreement signed by you and Katalon. You may not charge end users for use of your Plugins made available through the Katalon Store.

With respect to any collection, storage or other use of any data of end users of your Plugins, you represent you have a privacy policy that meets all the requirements of applicable law and describes accurately how you use such data.

If you choose to use the Katalon Standard Plugin License, then you are responsible for any other warranties or obligations you offer to an end user.

You shall comply with the terms of the Katalon Standard Plugin License or Your Plugin License Agreement, as applicable, and shall not act or fail to act in a manner that violates those agreements. Any warranties or obligations you undertake with the end user whether under Your Plugin License Agreement, Katalon Standard Plugin License or otherwise are solely between you and the end user. You are solely responsible for the operation, support, maintenance and all other obligations with respect to your Plugins. Katalon has no obligation to provide support or maintenance for your Plugins.

YOUR INFORMATION. You should not provide any information to Katalon that you consider confidential. Your personal information will be handled in accordance with this Agreement and the Privacy Policy available at katalon.com/terms#privacy-policy. Other than as set forth in its Privacy Policy, Katalon has no obligation to keep any information you provide confidential. You represent and warrant that all information you provide Katalon with respect to this Agreement, including information regarding your Plugins, is complete and accurate.

USE OF YOUR NAME, TRADEMARKS AND CHARACTERISTICS. You grant Katalon the nonexclusive, worldwide license to use your and your organization’s name, logos, and trademarks (“Your Marks”) to identify you as the developer of a Plugin and make the Plugin available and promote it via the Katalon Store and otherwise. You retain all rights in Your Marks. To the extent you have provided information regarding yourself or an individual in your organization, you consent to Katalon’s use of such persons’ image, likeness, voice, or other characteristics in Katalon’s products or services. You hereby release Katalon from any claims which you have or may have for invasion of privacy, right of publicity, defamation, copyright infringement, or any other causes of action arising out of the use, distribution, adaptation, reproduction, broadcast, or exhibition of such characteristics. You represent and warrant that you have obtained, for the benefit of Katalon, the same release in writing from all employees and third parties whose characteristics are included in the information you provide to Katalon.

FEEDBACK AND SUGGESTIONS. You grant Katalon a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Development Package any suggestions, enhancement requests, recommendations or other feedback provided by you, relating to the Development Package (“Feedback”). Katalon may use and incorporate any Feedback without any compensation or acknowledgment to you.

YOUR INDEMNIFICATION. You shall defend, indemnify and hold harmless Katalon, its affiliates and its and their officers, directors, employees, agents, successors and assigns from and against any and all losses, costs, expenses (including attorneys’ fees and expenses), claims, liabilities, and damages of any kind incurred by those persons or entities which result from (a) your violation of this Agreement, (b) your Plugins, (c) any obligations or liability arising under Your Plugin License Agreement; or (d) your acts or omissions with respect to your Plugins, including any interactions between you and end users of the Plugins.

TERMINATION. Your license to the Development Package and this Agreement terminates immediately upon the earlier to occur of the following: (a) when you stop using the Development Package, (b) upon your breach of any of the terms contained in this Agreement, (c) upon termination of your Katalon Studio license, or (d) as otherwise provided in this Agreement. Upon termination for any reason, you shall immediately destroy all copies of the Development Package and any related documentation in your possession or control.

DISCLAIMERS. KATALON MAKES NO, AND DISCLAIMS, ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. Without limiting the foregoing, you agree that Katalon and its officers, directors, agents, and employees, shall have no liability for errors or omissions in the output of the Development Package, such outputs including, without limitation, the quality or accuracy of any screen displays or reports, in the transmission and reception of data, or in the processing of such data by the Development Package.

LIMITATION OF LIABILITY. IN NO EVENT WILL KATALON OR ITS OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES, BE LIABLE TO YOU UNDER THIS AGREEMENT OR OTHERWISE, REGARDLESS OF THE FORM OF CLAIM OR ACTION, IN AN AMOUNT THAT EXCEEDS $100. IN NO EVENT WILL KATALON OR ITS OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES, BE LIABLE TO YOU FOR CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES OR COSTS (INCLUDING LEGAL FEES AND EXPENSES) OR LOSS OF GOODWILL OR PROFIT IN CONNECTION WITH THE DEVELOPMENT PACKAGE OR THIS AGREEMENT, EVEN IF KATALON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so this paragraph may not apply to you.

COMMUNICATIONS. General questions and communications regarding the Development Package can be made via the means provided at https://forum.katalon.com/. Any notices to Katalon regarding this Agreement should be made to info@katalon.com. Katalon may contact and notify you at the email address you provided as part of your Katalon account. You are required to keep your contact information current. Contact information you provided may be stored and used by Katalon in accordance with its Privacy Policy available at katalon.com/terms#privacy-policy and you consent to these uses.

GOVERNING LAW AND LANGUAGE. This Agreement is governed by the laws of the state of Georgia, USA, without regard to choice or conflicts of law rules. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. The official language of this Agreement is English. All contract interpretations, notices and dispute resolutions shall be in English. Translations of any of these documents are not to be construed as official or original versions of the documents.

(a) If you are a resident of, or a company organized under a state or territory of, the United States, then all disputes regarding this Agreement will be settled exclusively in any court of competent jurisdiction located in Fulton County, Georgia. Each party hereby consents and submits to the in personam jurisdiction of such courts. Each party hereby waives any objection based on forum non conveniens and any objection to venue of any action instituted under this Agreement to the extent that an action is brought in the courts identified above.

(b) Otherwise, all disputes regarding this Agreement shall be finally resolved by binding arbitration before a single arbitrator pursuant to the then-existing Rules of Conciliation and Arbitration (“Rules”), and under the auspices, of the International Chamber of Commerce (“ICC”). The arbitrator shall be knowledgeable in the chosen law and the Development Package industry. At either party’s request, the arbitrator shall give a written opinion stating the factual basis and legal reasoning for the decision. The arbitrator shall have the authority to determine issues of arbitrability and to award damages as permitted by this Agreement. The parties, their representatives, and any other participants shall hold the existence, content, and result of arbitration in confidence. The arbitration proceedings will take place in Atlanta, Georgia. Judgment on the arbitration award may be entered in any court having jurisdiction.

(c) Notwithstanding the foregoing, Katalon may, at its sole discretion, seek preliminary judicial relief in any court of competent jurisdiction (including, but not limited to, preliminary injunctive relief) as necessary to enforce its rights in its intellectual property.

LIMITATION OF ACTIONS. No action arising out of this Agreement, regardless of form, may be brought by you more than one year after the date the cause of action has accrued.

COMPLIANCE WITH LAWS. Your use of the Development Package and your creation, use and distribution of Plugins is subject to your compliance with all applicable laws. The Development Package and Plugins may be subject to export laws and regulations of the United States and other jurisdictions. You represent that you as an individual and your organization are not named on any U.S. government denied-party list. You shall not use or export the Development Package in violation of any U.S. export law or regulation.

U.S. GOVERNMENT END USE PROVISIONS. The following applies to all acquisitions of the Development Package by or for the U.S. government or by any prime contractor or subcontractor under any contract, grant or other activity with the U.S. government. The Development Package and services utilizing the Development Package and Documentation provided under this Agreement are “commercial items” as that term is defined at 48 C.F.R. 2.101 consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and other applicable acquisition regulations and are provided to the U.S. Government only as a commercial item. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202, all U.S. Government users and licensees acquire the Development Package and its associated services with only those rights and subject to the restrictions set forth in this Agreement. Notwithstanding the foregoing, the Development Package and its associated services may not be acquired by the U.S. government pursuant to a contract incorporating clauses prescribed by FAR Subpart 27.4 or DFARS Subpart 227.4.

MISCELLANEOUS. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third-party beneficiaries to this Agreement. Except as set forth above, no waiver or modification of any provision of this Agreement will be effective unless it is in writing, refers to this Agreement, and is signed by authorized representatives of the parties. No failure or delay by either party to exercise any right, power, or remedy constitutes a waiver of that right, power, or remedy. A party’s waiver of the performance of any covenant or any breach is not to be construed as a waiver of any succeeding breach or of any other covenant. If any provision of this Agreement requires judicial interpretation, this Agreement is not to be more strictly construed against one party than the other. If any provision of this Agreement is declared invalid by a court of competent jurisdiction, the provision will be ineffective only to the extent of the invalidity, so that the remainder of that provision and all remaining provisions of this Agreement will continue in full force and effect. You may not assign, sublicense, or transfer this Agreement without the prior written consent of Katalon. Any attempt by you to sublicense, assign or transfer any rights, duties, or obligations hereunder is null and void.

Welcome to the Katalon reseller program! This Reseller Agreement (this “Agreement”) outlines the terms and conditions under which you may resell Katalon, Inc. and/or its Affiliates' ("Katalon") Offerings to your Customers.

Please review this Agreement carefully. This Agreement is between you and the Katalon entity that owns or operates the Offering that you are reselling to your Customers. “You” or “your” means, unless otherwise indicated, your employer or another entity you represent, as applicable, as the reseller of the Offerings. You hereby represent that (a) you have full legal authority to bind your employer or such entity (as applicable) to this Agreement; and (b) after reading and understanding this Agreement, you agree to this Agreement on behalf of your employer or the respective entity (as applicable), and this Agreement shall bind your employer or such entity (as the case may be). PLEASE NOTE THAT YOU ARE DEEMED AN AUTHORIZED REPRESENTATIVE OF YOUR EMPLOYER OR AN ENTITY (AS APPLICABLE) IF YOU ARE USING YOUR EMPLOYER OR AN ENTITY’S EMAIL ADDRESS IN SIGNING OR ENTERING INTO THIS RESELLER AGREEMENT.

A glossary of defined terms is included at the end of this Agreement.

License and Distribution Grant. Subject to the terms and conditions of this Agreement, we hereby grant you a limited, nonexclusive, nontransferable, non-sublicensable license to distribute the Offerings to Customers pursuant to an Order. You may not appoint sub-distributors, resellers or other third parties to make available the Offerings to Customers, unless otherwise approved by us in writing. We also provide a copy of the Documentation that you may use in connection with the distribution of Offerings.

Order Process. You shall execute an Order for each resale of the Offerings to a Customer. Each Order will contain (i) a reference to this Agreement; (ii) the Offerings and fees; (iii) Customer delivery details; (iv) the delivery date; (v) the Customer’s Subscription Term; and (vi) other terms and conditions applicable to the license. Each executed Order is subject to and will be governed by the terms of this Agreement, but the parties may agree in any Order on additional terms for such Order, provided that such additional terms are not in conflict with this Agreement. The Offerings may not be provided to a Customer unless and until there is a valid Order for such Offering, and no Order is valid unless and until it is fully executed by both parties.

Before a Customer receives access to the Offerings, the Customer must enter into the Customer Agreement. The Customer will register for an account and enter into the Customer Agreement via the procedure on the Katalon website or in the Offerings. The Customer Agreement will be between the Customer and Katalon, except that Customers will pay you for the Offerings. In your dealings with Customers, you shall not override or modify the terms of the Customer Agreement.

You shall use reasonable efforts to protect and assist in the enforcement of our intellectual property rights in the Offerings and Documentation and shall promptly report to us any known infringement or other violation of our intellectual property rights of which you become aware.

We shall provide support directly to Customers as described in our support policy athttps://www.katalon.com/terms/#kse-re-support-policy

You shall notify us whenever there is a change in your relationship with a Customer (e.g., termination) that affects the parties’ obligations under this Agreement.

From time to time and without incurring any liability to you, we may, upon 30 days’ written notice: (i) change, add to or delete from the list of available Offerings, (ii) change fees or our pricing model, (iii) change or terminate the level or type of support that we offer to Customers, or (iv) request that you purchase licenses for the Offerings through another distributor or agent of Katalon. Any such change will not apply to (a) Customer Agreements in effect as of the effective date of the change, and (b) any price proposal that you have sent to a Customer prior to the effective date of the change, provided the Order and Customer Agreement for such price proposal are executed within 90 days of the effective date of the change.

Fee and Payment. You shall pay us the fees for the Offerings as set forth in the Order. Unless otherwise set forth in an applicable Order, all amounts shall be paid in US dollars within 30 days of your receipt of an invoice. Subject to any payment dispute (below), payment obligations are non-cancelable and all fees, once paid, are non-refundable. You agree (a) that any and all discounts, incentives and promotional pricing offered to you are conditioned upon your timely payments of all fees due hereunder; and (b) to pay a late charge of one and one-half percent (1.5%) per month (or part of a month), or the maximum lawful rate permitted by applicable law, whichever is less, for all amounts, not subject to a good faith dispute (below), and not paid when due. We may suspend the provision of the Offerings to your Customers until all fees due are paid in full.

Taxes. All fees are exclusive of Taxes. Amounts payable to us under this Agreement are payable in full to us without deduction and are net of Taxes. You will pay all Taxes associated with the Offerings and this Agreement, excluding any taxes based on our net income, property, or employees. We reserve the right to invoice for Taxes if required under the applicable taxing jurisdiction unless you provide us with an exemption certificate.

Payment Disputes. You will notify us in writing within 30 days of the date we bill you for any fees that you wish to dispute. When you are disputing any fees, you must act reasonably and in good faith and will cooperate diligently with us to resolve the dispute, and you will continue to timely pay all undisputed amounts that have been invoiced while the parties cooperate to resolve any dispute amount. We will not charge you a late fee or suspend the provision of the Offerings for unpaid fees that are in dispute, unless you fail to cooperate diligently with us, or we determine the dispute is not reasonable or not brought in good faith by you.

Registration of Leads. You may refer a lead to us in order for us to sell our Offerings (a “Proposed Lead”) by filling in the Opportunity Registration Form we provide or make available on our website. You shall not refer a direct competitor of Katalon or any entity on the Restricted Party Lists as a Proposed Lead. If the Proposed Lead (a) is not a potential customer that Katalon is engaging, and (b) has not been referred or registered by any other party, we will send you written approval following the submission of the Opportunity Registration Form acknowledging your registration of such Proposed Lead. If the Proposed Lead has been previously identified by Katalon or referred by another party, you will be promptly notified and shall not be entitled to receive a Referral Commission (as defined below).

Pursuit of Proposed Leads by Katalon. We may, at our sole discretion, contact and seek business opportunities in Proposed Leads.

Qualified Referral. A Proposed Lead becomes a qualified referral (“Qualified Referral”), and you become eligible for a Referral Commission only if: (a) your registration of such Proposed Lead has been approved by us in writing; (b) you have not entered into any agreement with respect to the use of the Offerings with such Proposed Lead; and (c) such Proposed Lead enters into a Customer Agreement for the use of the Offerings with us within 90 days from the date of the written approval of such Proposed Lead registration.

Referral Commissions. You will be paid a commission of up to 3% of the Net Revenue for each Qualified Referral (a “Referral Commission”).

Payment. Referral Commission payments will be paid (i) after we fully receive the full Net Revenue from a Qualified Referral, and (ii) within thirty (30) days upon our receipt of your invoice for such Referral Commission amount. In case this Agreement is terminated or expired, except in the event of termination for your breach, we will only pay you the Referral Commission on the Net Revenue received within 30 days following termination of this Agreement for the Qualified Referral determined prior to the date of termination or expiration of this Agreement.

Warranty. Each party represents and warrants that it has all necessary corporate power and authority to enter into this Agreement and perform all of its obligations hereunder.

No Conflict. Each party represents and warrants that the execution, delivery, and performance of this Agreement will not violate or conflict with any other obligations or agreements to which it is a party or with any applicable law or regulation.

Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, WE MAKE NO, AND DISCLAIM ALL, WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WE DO NOT REPRESENT OR WARRANT THAT THE OFFERINGS WILL BE ERROR-FREE OR THAT THE OFFERINGS WILL MEET YOUR OR YOUR CUSTOMERS’ REQUIREMENTS OR THAT ALL ERRORS IN THE OFFERINGS WILL BE CORRECTED, AND WE MAKE NO WARRANTIES AND DISCLAIM ALL WARRANTIES WITH RESPECT TO ANY COMPONENTS OR APPLICATIONS CREATED OR PROVIDED BY A PARTY OTHER THAN US. THE WARRANTIES STATED IN THIS SECTION ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY US. You agree that any use or purchase of our products or services shall not be contingent on the delivery of any future functionality or features, or dependent on any oral or written comments we make regarding future functionality or features.

Non-Use and Nondisclosure. Each party shall treat as confidential all Confidential Information of the other party, shall not use such Confidential Information except to exercise its rights and perform its obligations under this Agreement, and shall not disclose such Confidential Information to any employee or third party, except to those employees, advisors or representatives of the recipient who are under a contractual or fiduciary duty of confidentiality similar in content to the provisions hereof and for whom the recipient will remain responsible for hereunder (“Representatives”) and who are required to have access to such Confidential Information to perform the obligations under this Agreement. Without limiting the foregoing, each party shall use at least the same degree of care it uses to prevent the disclosure of its own confidential information of like importance, which care shall be no less than reasonable care, to prevent the disclosure of Confidential Information of the other party.

Exceptions. The receiving party may disclose Confidential Information of the disclosing party if required pursuant to a regulation, law, subpoena, or court order (collectively, “Compelled Disclosures”), provided the receiving party gives the disclosing party notice of a Compelled Disclosure (to the extent legally permitted). The receiving party will provide reasonable cooperation to the disclosing party in connection with a Compelled Disclosure at the disclosing party’s sole expense.

Feedback. You may provide suggestions, feedback and other information to us regarding possible improvements in the operation, functionality or use of the Offerings (“Feedback”). You hereby grant us the perpetual, irrevocable, sublicensable right to use, copy, modify, create derivative works of and otherwise fully exploit the Feedback to improve the operation, functionality or use of our existing and future offerings and commercializing such offerings.

Our Indemnification. We will defend you, your Affiliates and their respective officers, directors, employees and agents (collectively, the “Reseller Indemnitees”), against any claim, demand, suit or proceeding made or brought against any of the Reseller Indemnitees by a third party alleging that the Offerings infringe or misappropriate such third party’s U.S. intellectual property rights (a “Claim Against Reseller”), and will indemnify the Reseller Indemnitees from any damages (including reasonable attorney fees and costs) finally awarded against any of the Reseller Indemnitees as a result of, or for amounts paid under a court-approved settlement of, a Claim Against Reseller. If a Claim Against Reseller is brought or is likely, in our sole opinion, to be brought, we will, at our option and expense (a) obtain the right for your Customer to continue using the Offering; (b) replace or modify the affected Offering so that it becomes non-infringing; or (c) upon notice to you, terminate this Agreement or your Customer’s use of the affected Offerings, provided that in the case of subsection (c) we will promptly refund to you the prorated portion of any unearned pre-paid subscription fees paid hereunder for the affected Offerings. Our obligations in this section do not cover third party claims to the extent such claims arise from: (i) any products, services, technology, materials or data created or provided by a party other than us, (ii) any part of the Offerings made in whole or in part in accordance to your specifications, (iii) any modifications not made by us, (iv) any combination with other products, processes or materials not provided by us (where the alleged damages, costs or expenses arise from or relate to such combination), (v) where you continue the allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) your use of the Offerings not strictly in accordance with this Agreement or any Documentation ((i) through (vi), the “Excluded Claims”).

Your Indemnification. You will defend us, our Affiliates and their respective officers, directors, employees and agents (collectively, the “Katalon Indemnitees”) against any claim, demand, suit or proceeding made or brought against any or all of the Katalon Indemnitees by a third party arising out of or attributable to the Excluded Claims, and will indemnify the Katalon Indemnitees from any damages, reasonable attorney fees and costs finally awarded against the Katalon Indemnitees as a result of, or for any amounts paid under a court-approved settlement of an Excluded Claim.

Indemnification Procedure. Each party’s obligation to indemnify the other party is conditioned on the party seeking indemnification: (a) promptly notifying the indemnifying party in writing of any claim, suit or proceeding for which indemnity is claimed, provided that failure to so notify will not remove the indemnifying party’s obligation except to the extent it is prejudiced thereby, (b) allowing the indemnifying party to solely control the defense of any claim, suit or proceeding and all negotiations for settlement; provided that the indemnifying party shall not settle any claim that requires the indemnified party to admit fault without the indemnified party’s prior written consent (such consent not to be unreasonably withheld or delayed), and (c) giving the indemnifying party reasonable assistance in the defense and settlement of any claim, suit or proceeding for which indemnity is claimed.

Sole Remedy. The foregoing indemnity obligations state the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this section.

IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY UNDER THIS AGREEMENT OR OTHERWISE, REGARDLESS OF THE FORM OF CLAIM OR ACTION: (I) IN AN AMOUNT THAT EXCEEDS THE FEES YOU HAVE PAID FOR THE OFFERINGS UNDER THE APPLICABLE ORDER IN THE PRECEDING 12 MONTHS; OR (II) FOR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR INDIRECT DAMAGES OR COSTS (INCLUDING WITHOUT LIMITATION, LOSS OF GOODWILL OR PROFIT, BUSINESS INTERRUPTION, LOSS OF BUSINESS) IN CONNECTION WITH THE OFFERINGS OR THIS AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS. The limitations of liability set forth in this paragraph will not apply to: (a) each party’s violation of the other party’s intellectual property rights; (b) your payment obligations; and (c) a party’s liability related to (i) its indemnification obligations, (ii) its breach of its confidentiality obligations, (iii) its breach of any restrictions on the access or use of the Offerings, and/or (iv) gross negligence or intentional misconduct, or (c) any obligation where the applicable law does not allow the limitation(s) thereof. The parties hereby acknowledge that the provisions of this paragraph allocate the risks under this Agreement and the applicable Order which are acknowledged and agreed by and between you and us, and our pricing reflects this allocation of risk and the limitation of liability specified herein.

Welcome to the Katalon Partnership Program! Katalon, Inc. and/or its Affiliates (“Katalon”, “we”, “us” or “our”) enter into a Partnership with you subject to the following terms and conditions.

Please review the Partnership Registration Form, these Partnership Terms and Conditions, and the Partner Program Terms (collectively, this “Agreement”) carefully. This Agreement is between you and the Katalon entity that owns or operates the Offerings that are the basis of this Agreement. “You” or “your” means, unless otherwise indicated, your employer or another entity you represent, as applicable. You hereby represent that (a) you have full legal authority to bind your employer or such entity (as applicable) to this Agreement; and (b) after reading and understanding this Agreement, you agree to this Agreement on behalf of your employer or the respective entity (as applicable), and this Agreement shall bind your employer or such entity (as the case may be). PLEASE NOTE THAT YOU ARE DEEMED AS AN AUTHORIZED REPRESENTATIVE OF YOUR EMPLOYER OR AN ENTITY (AS APPLICABLE) IF YOU ARE USING YOUR EMPLOYER OR AN ENTITY’S EMAIL ADDRESS IN SIGNING OR ENTERING INTO A PARTNERSHIP REGISTRATION FORM.

A glossary of defined terms is included at the end of these Partnership Terms and Conditions.

1.1. Partnership. By signing the Partnership Registration Form, you agree to enter into a business relationship with us under this Agreement for the partnership activities and Partner Type indicated on the Partnership Registration Form (“Partnership”).

1.2. Non-exclusive Agreement.Each party acknowledges that this Agreement does not create an exclusive agreement between the parties. This Agreement shall not in any way restrict either party from working with other third parties to conduct a similar scope of activities under this Agreement.

1.3. Partner. During the term of this Agreement, you agree to maintain your eligibility to participate in the Partnership with Katalon as provided under the Partner Program Terms. Your conduct under the Partnership shall be for your own account and at your own expense, and except as expressly permitted under this Agreement, you shall not give warranties, assume or create any obligations, enter into contracts or otherwise incur liabilities on the behalf of Katalon.

2.1. Publicity Right. You agree that either party may identify the other party as each other’s partner and use the other party’s name, Marks, or description of our Partnership on its own website, in Marketing Materials, or on other mediums subject to the publicity guidelines agreed by the parties in advance. Each party will promptly stop doing so (a) upon a request sent by the other party, or (b) upon expiration or termination of this Agreement. In this respect, neither party shall conduct anything that is inconsistent with or contrary to the ownership of the other party in its Marks.

2.2. Use of Materials. Subject to the terms of this Agreement, we hereby grant to you a non-exclusive, non-sublicensable, and non-transferable license during the term of this Agreement to (a) use our Marketing Materials for the sole purpose of marketing the Offerings to a Customer in connection with this Partnership, and (b) use the Training Materials for the sole purpose of providing training on the Offerings. Subject to the terms of this Agreement, you hereby grant to Katalon a non-exclusive, non-sublicensable, and non-transferable license during the term of this Agreement to use your Marketing Materials free of any charge for the sole purpose of marketing the Offerings and/or the Partnership to our actual or prospective customers. Neither party shall (i) modify any Materials of the other party (including, but not limited to, any wordings, designs, and Marks contained therein) unless it obtains written approval from the other party, or (ii) continue using the other party’s Materials after the termination or expiration of this Agreement.

2.3. Non-Production Use. During the Term and subject to the Partner Program Terms, Katalon may provide you a limited set of license or scope of use of an applicable Offering solely for your internal training, evaluation, integration (if applicable) or for demonstration to the Customers under this Partnership. You may not grant any license of the Offerings to your Customers as part of such non-production use.

2.4. Co-Branded Marketing Materials. You may request the creation of co-branded Marketing Materials. Each request will be considered on a case-by-case basis at our discretion. In case we accept the request, the terms and conditions of the co-branded Marketing Materials will be agreed upon in writing by the parties.

3.1. Non-Use and Nondisclosure. Each party shall treat as confidential all Confidential Information of the other party, shall not use such Confidential Information except to exercise its rights and perform its obligations under this Agreement, and shall not disclose such Confidential Information to any employee or third party, except to those employees, advisors or representatives of the recipient who are under a contractual or fiduciary duty of confidentiality similar in content to the provisions hereof and whom the recipient will remain responsible for hereunder (“Representatives”) and who are required to have access to such Confidential Information in order to perform the obligations under this Agreement. Without limiting the foregoing, each of the parties shall use at least the same degree of care it uses to prevent the disclosure of its own confidential information of like importance, which care shall be no less than reasonable care, to prevent the disclosure of Confidential Information of the other party.

3.2. Exceptions. The receiving party may disclose Confidential Information of the disclosing party if so required pursuant to a regulation, law, subpoena, or court order (collectively, “Compelled Disclosures”), provided the receiving party gives the disclosing party notice of a Compelled Disclosure (to the extent legally permitted). The receiving party will provide reasonable cooperation to the disclosing party in connection with a Compelled Disclosure at the disclosing party’s sole expense.

3.3. Feedback. You may provide suggestions, feedback and other information to us regarding possible improvements in the operation, functionality or use of the Offerings (“Feedback”). We have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Offerings and related systems and technologies, including without limitation operating speed, memory usage, throughput, bandwidth, errors and error rates, user logins, feature usage, performance data, and other information reasonably necessary to confirm that you and your Customers are complying with license usage restrictions (“Usage Data”). You hereby grant us the perpetual, irrevocable, sublicensable right to use, copy, modify, create derivative works of and otherwise fully exploit (a) Usage Data and the Feedback to improve the operation, functionality, or use of our existing and future offerings and commercializing such offerings; (b) the Usage Data to publish aggregated statistics about product quality, provided that no data in any such publication can be used to specifically identify you or your Customers; and (c) the Usage Data to confirm that you are complying with the Partner Program Terms.

As between the parties and except for the limited rights expressly granted herein, (x)we exclusively own and reserve all right, title, and interest in and to the Offerings, the Documentation, and our Marks, Materials, and Confidential Information, including all intellectual property rights therein; and (y) you exclusively own and reserve all right, title, and interest in and to your Marks, Materials, and Confidential Information, including all intellectual property rights therein. . No rights are granted to you hereunder other than as expressly set forth in this Agreement. Without limiting the generality of the foregoing, except as otherwise expressly permitted in this Agreement, you will not, and procure that your Customer will not, (a) use the Offerings for the benefit of any third party, or permit any third party to use the Offerings (other than as expressly permitted by us), (b) reproduce, modify, adapt or create derivative works of the Offerings, (c) reverse engineer, disassemble, decompile, translate or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to the Offerings, except to the extent expressly permitted by applicable law (and then only upon advance notice to us), (d) remove or obscure any proprietary or other notices on the Offerings, (e) attempt to gain unauthorized access to the Offerings, interfere with, or otherwise circumvent any security measures or mechanisms intended to limit your use within the Offerings, (f) use the Offerings for competitive analysis, product benchmark or to build competitive products; (g) publicly disseminate information regarding the performance of any products or services on the Offerings; (h) use the Offerings to transmit or store any malicious code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses; or (i) encourage or assist any third party to do any of the foregoing.

5.1. Warranty. Each party represents and warrants that (a) it has all necessary corporate power and authority to enter into this Agreement, and to perform all of its obligations hereunder, and (b) the execution, delivery, and performance of this Agreement will not violate or conflict with any other obligations or agreements to which it is a party.

5.2. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, WE MAKE NO, AND DISCLAIMS ALL, WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WE DO NOT REPRESENT OR WARRANT THAT THE OFFERINGS WILL BE ERROR-FREE OR THAT THE OFFERINGS WILL MEET YOUR OR YOUR CUSTOMERS’ REQUIREMENTS OR THAT ALL ERRORS IN THE OFFERINGS WILL BE CORRECTED, AND WE MAKE NO WARRANTIES AND DISCLAIM ALL WARRANTIES WITH RESPECT TO ANY COMPONENTS OR APPLICATIONS CREATED OR PROVIDED BY A PARTY OTHER THAN US. THE WARRANTIES STATED IN THIS SECTION ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY US. You agree that any use or purchase of our Offerings shall not be contingent on the delivery of any future functionality or features, or dependent on any oral or written comments we make regarding future functionality or features.

6.1. Export Control. The Offerings are subject to export restrictions by the United States government and may be subject to import restrictions by certain foreign governments, and you agree to comply with all applicable export and import laws and regulations in your access to, use of, download and resales of the Offerings (or any part thereof). You shall not, directly or indirectly, import, export, re-export or transship the Offerings, services, or technical information in violation of any applicable export control and economic sanctions laws and regulations of any country having jurisdiction over the Offerings, or parties to this Agreement (“Export Laws”), including without limitation, the U.S. Export Administration Regulations and those economic sanctions regulations maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, and any other economic sanctions imposed by the U.S Government upon any country, territory, or person. You represent and warrant that (a) you and your Customer are not the subject or target of, and that you and your Customer are not located in a country or territory (including without limitation, Belarus, Russia, North Korea, Cuba, Iran, Syria, and Crimea) that is the subject or target of, economic sanctions of the United States or other applicable jurisdictions, (b) none of your data is controlled under the U.S. International Traffic in Arms Regulations or similar laws in other jurisdictions, and (c) you will refrain from referring Proposed Leads that could be suspected of engaging in activities that would be illegal under U.S. laws and/or Export Laws. You agree not to use or provide the Offerings for any prohibited end use, including to support chemical, biological or nuclear weapons, or missile technology, or military-intelligence, without the prior permission of the U.S. government. You agree to comply with all applicable Export Laws and will indemnify, defend, and hold us harmless from any claim against us due to your violation or alleged violation of the Export Laws.

6.2. Conduct. You represent, warrant and agree that you maintain a code of conduct that requires all personnel performing activities pursuant to this Agreement to conduct themselves in compliance with the highest standards of business ethics and integrity. Either party is committed to observing applicable anti-corruption laws of the countries in which it operates, including, but not limited to, the United States Foreign Corrupt Practices Act (FCPA). You represent and warrant that (a) you will conduct your business activities in a legal and ethical manner; (b) you have submitted and will submit complete and truthful information in connection with this Partnership and all referrals; (c) you will submit all filings and obtain any approvals that may be necessary for you to perform your obligations under this Agreement, (d) you will commit no act that would reflect unfavorably on Katalon; (e) you and your officers, directors and other principals are not a Restricted Party, and (f) you will comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with your performance of this Agreement, including without limitation, privacy, anti-spam, advertising, copyright, trademark and other intellectual property laws. You acknowledges that any sums paid to you under this Agreement are for your own account and that, except as appropriate to carry out your duties set forth herein in a legal manner, you did not have any obligation to, and will not, directly or indirectly, give, offer, pay, promise to pay, or authorize the payment of money or anything of value to any other person in connection with the performance of your referral activities hereunder. In particular, without limitation, you agree not to take any actions that would cause you or Katalon to violate the United States Foreign Corrupt Practices Act or any other anti-bribery law. You shall promptly notify us of any actual or potential violation of the foregoing or any investigation, audit, notice, subpoena, demand or other communication (whether oral or written) from any governmental authority regarding your actual or potential violation of the foregoing.

6.3. U.S. Government End-Use Provisions. The following applies to all acquisitions of the Offerings and Documentation by or for the U.S. government or by any prime contractor or subcontractor under any contract, grant or other activity with the U.S. government. The Offerings and Documentation and services utilizing the Offerings and Documentation provided under this Agreement are “commercial items” as that term is defined at 48 C.F.R. 2.101 consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and other applicable acquisition regulations and are provided to the U.S. Government only as a commercial item. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202, all U.S. Government users and licensees acquire the Offerings and its associated services and Documentation with only those rights and subject to the restrictions set forth in this Agreement. Notwithstanding the foregoing, the Offerings and its associated services and Documentation may not be acquired by the U.S. government pursuant to a contract incorporating clauses prescribed by FAR Subpart 27.4 or DFARS Subpart 227.4.

6.4. Books and Records. You will maintain true, accurate, and complete books and records with respect to all transactions and asset disposals with respect to your performance of obligations under this Agreement, including without limitation records of payments made by or to, and expenses incurred by, you in relation to this Agreement. You shall maintain such books, records, and accounts during the Term of this Agreement and for a period of two (2) years thereafter (or such longer period as may be required by applicable law) and permit us, at our own cost and subject to not less than 10-day advance notice, to inspect and audit such books and records to examine your compliance with this Agreement.

7.1. Our Indemnification. We will defend you, your Affiliates and their respective officers, directors, employees and agents (collectively, the “Partner Indemnitees”), against any claim, demand, suit or proceeding made or brought against any of the Partner Indemnitees by a third party alleging that the Offerings infringe or misappropriate such third party’s U.S. intellectual property rights (a “Claim Against Partner”), and will indemnify the Partner Indemnitees from any damages (including reasonable attorney fees and costs) finally awarded against any of the Partner Indemnitees as a result of, or for amounts paid under a court-approved settlement of, a Claim Against Partner. If a Claim Against Partner is brought or is likely, in our sole opinion, to be brought, we will, at our option and expense (a) obtain the right for you to continue using the Offering; (b) replace or modify the affected Offering so that it becomes non-infringing; or (c) upon notice to you, terminate this Agreement or your use of the affected Offerings, provided that in the case of subsection (c) we will promptly refund to you the prorated portion of any unearned pre-paid subscription fees paid hereunder for the affected Offerings. Our obligations in this section do not apply to: (i) any products, services, technology, materials or data created or provided by a party other than us, (ii) any part of the Offerings made in whole or in part in accordance to your specifications, (iii) any modifications not made by us, (iv) any combination with other products, processes or materials not provided by us (where the alleged damages, costs or expenses arise from or relate to such combination), (v) where you continue the allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) your use of the Offerings not strictly in accordance with this Agreement or any Documentation ((i) through (vi), the “Excluded Claims”).

7.2. Your Indemnification. You will defend us, our Affiliates and their respective officers, directors, employees and agents (collectively, the “Katalon Indemnitees”) against any claim, demand, suit or proceeding made or brought against any or all of the Katalon Indemnitees by a third party arising out of or attributable to the Excluded Claims, and will indemnify the Katalon Indemnitees from any damages, reasonable attorney fees and costs finally awarded against the Katalon Indemnitees as a result of, or for any amounts paid under a court-approved settlement of an Excluded Claim.

7.3. Indemnification Procedure. Each party’s obligation to indemnify the other party is conditioned on the party seeking indemnification: (a) promptly notifying the indemnifying party in writing of any claim, suit or proceeding for which indemnity is claimed, provided that failure to so notify will not remove the indemnifying party’s obligation except to the extent it is prejudiced thereby, (b) allowing the indemnifying party to solely control the defense of any claim, suit or proceeding and all negotiations for settlement; provided that the indemnifying party shall not settle any claim that requires the indemnified party to admit fault without the indemnified party’s prior written consent (such consent not to be unreasonably withheld or delayed), and (c) giving the indemnifying party reasonable assistance in the defense and settlement of any claim, suit or proceeding for which indemnity is claimed.

7.4. Sole Remedy. The foregoing indemnity obligations state the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this section.

IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY UNDER THIS AGREEMENT OR OTHERWISE, REGARDLESS OF THE FORM OF CLAIM OR ACTION: (I) IN AN AMOUNT THAT EXCEEDS THE TOTAL AMOUNT PAID BY THE PARTY MAKING THE CLAIM TO THE OTHER PARTY IN THE PRECEDING TWELVE (12) MONTHS; OR (II) FOR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR INDIRECT DAMAGES OR COSTS (INCLUDING WITHOUT LIMITATION, LOSS OF GOODWILL OR PROFIT, BUSINESS INTERRUPTION, LOSS OF BUSINESS) IN CONNECTION WITH THE OFFERINGS OR THIS AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS. The limitations of liability set forth in this paragraph will not apply to: (a) each party’s violation of the other party’s intellectual property rights; (b) your payment obligations (if any); (c) a party’s liability related to (i) its indemnification obligations, (ii) its material breach of its confidentiality obligations, and/or (iii) gross negligence or intentional misconduct, or (d) any obligation where the applicable Law does not allow the limitation(s) thereof. The parties hereby acknowledge that the provisions of this paragraph allocate the risks under this Agreement and the applicable Order which are acknowledged and agreed by and between you and us, and our pricing reflects this allocation of risk and the limitation of liability specified herein.

We may modify the terms and conditions of this Agreement from time to time, with notice to you in accordance with the provision on Notices below or by posting the modified Agreement on our website; provided, however, any modifications to this Agreement will take effect at the next renewal of the Term and will automatically apply as of the renewal date unless you elect not to renew. Notwithstanding the foregoing, in some cases (e.g., to address compliance with laws, as necessary for new features, or to update Partner Program Terms) we may specify that such modifications become effective during your then-current Term. If the effective date of such modifications is during your then-current Term and you object to the modifications, then (as your exclusive remedy) you may terminate this Agreement. To exercise this right, you must provide us with notice of your objection and termination within thirty (30) days of us providing notice of the modifications. For the avoidance of doubt, any Order is subject to the version of this Agreement in effect at the time of the Order.

10.1. Term. The term of this Agreement will continue for one year from the Effective Date and is subject to auto-renewal in accordance with this Agreement (“Term”).

10.2. Termination for Convenience. Either party may terminate this Agreement for convenience at any time for any reason by providing the other party not less than thirty (30) days’ prior written notice.

10.3. Other Termination. A party may terminate this Agreement or an Order (i) if the other party commits any material breach of this Agreement or such Order and does not remedy the material breach within thirty (30) days after the date that it receives notice of the breach or (ii) in the event of a material breach that is not capable of being cured by the other party. This Agreement may be terminated by either party immediately upon written notice, in the event that: (a) the other party files a petition, in bankruptcy, seeking any reorganization, arrangement, composition, or similar relief under any law regarding insolvency or relief for debtors, or makes an assignment for the benefit of creditors; (b) a receiver, trustee, or similar officer is appointed for the business or property of such party; or (c) the other party adopts a resolution for discontinuance of its business or for dissolution. Notwithstanding other provision hereunder, Katalon may immediately terminate this Agreement in the event the Partner fails to make any payments when such payments are due. Termination of an Order shall not be deemed a termination of this Agreement. Termination of this Agreement shall, however, terminate all outstanding Orders.

10.4. Auto-Renewal. To ensure that you will not experience any interruption or loss of services, the Partnership includes an automatic renewal option by default, according to which, unless you notify us of your intention not to renew at least thirty (30) days prior to its expiration, the Term will automatically renew upon the end of the then applicable Term for additional one-year period. Unless specified in an applicable Order, all renewals (a) are subject to the applicable products or services continuing to be offered on the Offerings, (b) will be charged at the then-current prices for the applicable Offerings, (c) will exclude any discount or other promotions offered during the prior Term, and (d) are subject to any changes in usage policies, usage limits or other conditions on the Offerings.

10.5. Effect of Termination. Upon any termination or expiration of this Agreement, either party shall cease to carry out any activities under the Partnership or make use of the Documentation or any of the Marks and Materials of the other party. Each party shall promptly return or destroy all Confidential Information of the other party in its possession, except that each party may keep a copy of the other party’s Confidential Information for archival purposes, or otherwise in accordance with their respective internal recordkeeping procedures, or in compliance with applicable laws, and will not be required to delete or destroy any copies maintained in its normal-course back-up media. All rights and obligations of the parties which by their nature are reasonably intended to survive such termination or expiration will survive termination or expiration of this Agreement and each Order. Subject to the foregoing and to any rights or obligations which have accrued prior to the termination, neither party shall have any further obligation to the other party under this Agreement.

10.6. No Assurances. You have no expectation and have received no assurances that your business relationship with us will continue for any specified time beyond the term of this Agreement, that any investment in the promotion of the Offerings will be recovered or recouped, or that it will receive any anticipated amount of profits by virtue of this Agreement. Neither party shall be liable to any other damages, indemnity, or compensation solely on account of the termination or expiration of this Agreement with or without cause as provided herein, whether such damages, indemnity, or compensation might be claimed for loss through loss of investments, loss of present or prospective profits, loss of goodwill or any other loss caused by termination or expiration of this Agreement howsoever arising, and whether foreseeable or otherwise. However, termination or expiration of this Agreement, howsoever arising, shall not prejudice in any way any rights of a party with regard to any antecedent breaches by the other party which occurred on or before the date of termination or expiration, as the case may be.

11.1. Assignment. Neither this Agreement nor any rights or obligations under this Agreement may be assigned or otherwise transferred by either party without the prior written consent of the other party; provided that, such prior written consent is not required for any assignment by either party to its Affiliates or to any successor of substantially all of its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assign.

11.2. Force Majeure. Nonperformance of either party, except for the making of payments, shall be excused to the extent that performance is rendered impossible by strike, fire, flood, earthquake, governmental acts or orders or restrictions, cyber-attacks, information security and data breaches caused by third parties, failure of cloud services, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of such party (collectively, “Force Majeure Events”). The party affected by a Force Majeure Event will take all reasonable actions to minimize the consequences of any such event.

11.3. Notice. All notices, consents and other communications hereunder shall be provided in writing and shall be delivered personally or by email or registered or certified mail (return receipt requested) to the parties at the addresses set forth on the Partnership Registration Form (or such other address as may have been furnished by or on behalf of such party by like notice); provided that, for any notices sent to us, a copy of the notice will be sent to legal@katalon.com. The parties hereby agree that any electronic communication will satisfy any applicable legal communication requirements, including that such communications be in writing. Communications sent by email shall be deemed delivered upon dispatch. Communications sent by registered or certified mail shall be deemed delivered upon receipt.

11.4. Relationship of Parties. The relationship between the parties to this Agreement is and shall be that of independent contractors. Nothing contained in this Agreement shall be construed to (a) give either party the power to direct and control the day-to-day activities of the other; or (b) constitute the parties as partners, agents, joint venturers, co-owners or otherwise as participants in a joint undertaking.

11.5. Injunctive Relief. Nothing contained in this Agreement shall deny either party the right to seek immediate injunctive or other equitable relief from a court of competent jurisdiction: (a) in the context of a bona fide emergency or prospective irreparable harm to preserve the status quo pending resolution of a dispute between the parties or (b) where a party alleges or claims a violation of any agreement regarding intellectual property, confidential information or noninterference. Such an action may be filed and maintained notwithstanding any ongoing discussions between the parties or any ongoing arbitration proceeding.

11.6. Additional Partner Terms. Additional terms and conditions specific to the Partner Type (e.g., Solution Partner or Technology Partner) designated in the Partnership Registration Form are set forth in the Addendum (the “Additional Partner Terms”), and such particular Additional Partner Terms will apply in addition to this Agreement.

11.7. Governing Law. This Agreement shall be governed by the laws of the State of Georgia, USA, without regard to the conflicts of law provisions of any jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. To the extent that any lawsuit is permitted under this Agreement, the parties hereby expressly consent to the personal and exclusive jurisdiction and venue of the state and federal courts located in Fulton County, Georgia, USA (to the extent not addressed by arbitration below, if any).

11.8. Dispute Resolution. In the event of any dispute, claim, or controversy in connection with this Agreement (collectively, “Disputes”), each party’s senior representatives will, in good faith, attempt to resolve the Dispute. If the parties are unable to resolve the Dispute within thirty (30) days or within such other time period as the parties may agree in writing, then the parties may commence binding arbitration under JAMS’ Comprehensive Arbitration Rules and Procedures. The parties will share equally the fees and expenses of the JAMS arbitrator. The arbitration will be conducted by a sole arbitrator mutually agreed to between the parties or, failing that, by JAMS under its then prevailing rules. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The arbitrator will have the authority to grant specific performance or any other equitable or legal remedy, including provisional remedies. Each party will be responsible for its own incurred expenses arising out of any dispute resolution procedure. Any arbitration proceedings will take place in Fulton County, Georgia, USA.

11.9. Amendment; Entire Agreement; No Waiver. There are no third-party beneficiaries to this Agreement. Except as otherwise expressly set forth herein, no amendment or modification of any provision of this Agreement will be effective unless it is in writing, references and clearly states the intention to amend this Agreement and is signed by authorized representatives of the parties. You may not use a purchase order or other instrument not issued by Katalon to modify or supplement this Agreement, and all such attempted modifications or additions to this Agreement in any such purchase order or instrument shall be void and of no effect, even if accepted or signed by both parties. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all previous understandings, communications, statements, agreements, and arrangements with respect to the subject matter hereof, whether written or oral. Any waiver of the provisions of this Agreement or of a party’s rights or remedies under this Agreement must be in writing referencing this Agreement to be effective. Failure, neglect, or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time shall not be deemed to be a waiver of such party’s rights under this Agreement and shall not prejudice such party’s right to take subsequent action. A party’s waiver of the performance of any covenant or any breach is not to be construed as a waiver of any succeeding breach or of any other covenant.

11.10. Severability. If any term, condition, or provision in this Agreement is found to be invalid, unlawful, or unenforceable to any extent, the invalid, unlawful, or unenforceable term, condition or provision shall be severed from the remaining terms, conditions, and provisions, which shall continue to be valid and enforceable to the fullest extent permitted by law.

11.11. Counterparts; Language. The parties may execute this Agreement in several counterparts, all of which together constitute one Agreement between the parties. The language of this Agreement, any Addendum and all Orders is English. All contract interpretations, notices and dispute resolutions shall be in English. Translations of any of these documents are not to be construed as official or original versions of the documents.

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with, the specified entity. For purposes of this definition, “control” means direct or indirect ownership of more than fifty percent (50%) of the voting interests of the subject entity.

“Agreement” means this partnership agreement comprising the Partnership Terms and Conditions, Partnership Registration Form, and the Partner Program Terms.

“Confidential Information” means any material or information disclosed by either party to the other party either directly or indirectly, relating to this Agreement, in writing, orally or by inspection of tangible objects (including without limitation material or information relating to such party’s research, development, know-how, products, product plans, services, customer, customer lists, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, marketing, finances, or other business information or trade secrets), which is designated as “Confidential,” “Proprietary” or some similar designation, or information the confidential or proprietary nature of which is reasonably apparent under the circumstances. Confidential Information shall not include information which (a) becomes a part of the public domain through no act or omission of recipient; (b) was in recipient’s lawful possession prior to the disclosure by discloser and had not been subject to limitations on disclosure or use, as shown by recipient’s files existing at the time of disclosure; (c) is independently developed by recipient’s employees or independent contractors who have not had access to the Confidential Information; or (d) is lawfully disclosed hereafter to recipient, without restriction, by a third party who did not acquire the information directly or indirectly from discloser.

“Customer” means a customer for your products and/or services and who has or will potentially have a separate subscription to the applicable Offerings and whose use of the Offerings is subject to the Customer Terms of Use.

“Customer Terms of Use” means the Katalon Customer Terms of Use that applies to a Customer’s use of the Offerings, currently located at https://katalon.com/terms

“Documentation” means our standard published documentation for the Offerings, including any usage guides and policies, currently located at https://docs.katalon.com/

“Effective Date” means the last signature date in the applicable Partnership Registration Form.

“Marketing Materials” means any marketing, promotional, or ancillary information, document or materials used for marketing and providing details of the Offerings to the Customer.

“Marks” means the logos, designs, trade names, trademarks, service names and service marks supplied by either party to the other for use as part of its activities under this Agreement.

“Materials” means Marketing Materials and Training Materials, collectively.

“Net Revenue” means any payments received by Katalon from a Qualified Referral under the subscription agreement between Katalon and the Qualified Referral for the Offering(s) within 12 months of the execution of such agreement, less any taxes, subsequently credited charges, write-offs, refunds or charge backs. For the avoidance of doubt, Net Revenue does not include any amounts received for renewals, professional services, support services, training services, or for products or services provided by a third party, nor does it include amounts that are owed by the Qualified Referral but have not actually been received by Katalon or amounts that are returnable or refundable to Qualified Referral.

“Offerings” means the products and services specified in an Order provided by Katalon and subject to the Partnership between Katalon and you. All use of the Offerings shall be subject to the Customer Terms of Use.

“Order” means Katalon’s applicable order form(s) or other ordering document approved by Katalon that specifies, as applicable, mutually agreed upon the Offerings that you, directly or on your Customer's behalf, are ordering from us, and the amount or rate you will be charged, the billing terms, applicable currency, and form of payment.

“Partner Program Terms” means specific program terms applicable to certain partner program which are set forth on the Partnership Registration Form as may be updated from time to time.

“Restricted Party” means any entity included in any restricted party lists of the U.S. Government or located in any country on any embargoed list maintained by the U.S. Government.

“Taxes” means any applicable taxes, levies, duties, or other similar exactions imposed by a legal, governmental, or regulatory authority in any applicable jurisdiction, including, without limitation, sales, use, value-added, consumption, communications, or withholding taxes.

“Training Materials” means training information, instructions, guidance or other materials regarding the Offerings that Katalon provides to you as may be necessary to properly perform your obligations under this Agreement.

These specific Additional Partner Terms, which consist of the provisions below and the program details provided by us on the Partner portal from time to time, will apply with respect to your particular Partner Type as designated in the Partnership Registration Form, in addition to the Partnership Terms and Conditions. All defined terms used herein but not otherwise defined shall have the meanings given to them in the Partnership Terms and Conditions.

The following additional terms and conditions apply if you are registered as a Solution Partner.

Subject to the terms and conditions of this Agreement, we hereby grant you, as a Solution Partner, a limited, non-exclusive, non-transferable, non-sublicensable right to distribute the Offerings to Customers pursuant to agreements between you and Customers (“Reseller Agreement”). You shall not appoint sub-distributors, resellers, or other third parties to make available the Offerings to Customers.

You shall execute an Order under the form provided by us for the Offerings you distribute to a Customer. Each executed Order is subject to and be governed by the terms of this Agreement, and in the event of any conflict between this Agreement and those of any Order, this Agreement will control (unless such Order is intended to control), and the terms of an Order and this Agreement will prevail over any conflicting provision in any purchase order or any other instrument regardless of execution by the parties.

You shall use commercially reasonable efforts to protect and assist in the enforcement of our intellectual property rights in the Offerings, Materials, and Documentation and shall promptly report to us any known or suspected infringement or other violation of our intellectual property rights of which you become aware.

You shall notify us whenever there is a change in the relationship with a Customer (e.g., termination) that affects the parties’ obligations under this Agreement. In case you purchase and use the Offerings as part of the services that you provide to your Customers in respect to your products and services, such use will be governed under the Customer Terms of Use.

In addition and without prejudice to relevant provisions under this Agreement, upon termination of this Agreement and subject to the Customer Terms of Use, each Customer’s right to access and use the Offerings shall continue in accordance with such Customer’s subscription terms to the Offerings.

We will provide support directly to Customers as per our applicable support policy. You may provide additional support to Customers under the Reseller Agreement or any other agreements between you and such Customers, but you are solely responsible for the same.

7.1. Fees. You shall pay us the fees for the Offering(s) as set forth in the applicable Order. Unless otherwise set forth in an applicable Order, payment shall be due within thirty (30) days of receipt of invoice and shall be made in United States dollars, and invoices may be submitted via email to the email address(es) you designate herein. Subject to any payment dispute (below), payment obligations are non-cancelable and all fees, once paid, are non-refundable. You agree (a) that any and all discounts, incentives, and promotional pricing (if any) offered by Katalon are conditioned upon your timely payments of all fees due hereunder; (b) to pay a late charge of one and one-half percent (1.5%) per month (or part of a month), or the maximum lawful rate permitted by applicable law, whichever is less, for all amounts, not subject to a good faith dispute (below), and not paid when due. Katalon may suspend or terminate the use of the Offerings if we do not receive the payment from you.

7.2. Taxes. All fees are exclusive of Taxes. Amounts payable to us under this Agreement are payable in full to us without deduction and are net of Taxes. You will pay all Taxes associated with the Offerings and this Agreement, excluding any taxes based on our net income, property, or employees. We reserve the right to invoice for Taxes if required under the applicable taxing jurisdiction unless you provide us with an exemption certificate.

7.3. Payment Disputes. You will notify us in writing within thirty (30) days of the date we bill you for any fees that you wish to dispute. Where you are disputing any fees, you must act reasonably and in good faith and will cooperate diligently with us to resolve the dispute. We will not charge you a late fee or suspend the provision of the Offerings for unpaid fees that are in dispute, unless you fail to cooperate diligently with us, or we determine the dispute is not reasonable or not brought in good faith by you.

The following additional terms and conditions shall apply if you are registered as a Technology Partner.

Subject to the terms and conditions of this Agreement, we hereby grant you, as a Technology Partner, a limited, non-exclusive, non-transferable, non-sublicensable right to integrate the Offerings into your products and/or services (“Integrated Products”) in accordance with the Documentation and our guidelines and instructions.

You shall configure your interface in the Integrated Products for their integration with the Offerings in accordance with the Documentation and our guidelines and instructions. The parties shall reasonably cooperate and make available information and assistance in connection with their activities regarding this integration.

Once the initial integration activities are complete, the parties will test and validate the integration of the Offerings with the Integrated Products and ensure they meet the criteria set forth in the Documentation and Katalon’s guidelines and instructions (the “Validation Process”). Thereafter, parties will conduct the Validation Process whenever (a) either party intends to issue an update or change that is likely to affect the integration of the Offerings and the Integrated Products, or (b) one party reasonably requests the Validation Process. In order to successfully complete the Validation Process, the parties will meet and conduct a mutual demonstration of the integration between the Offerings and Integrated Products, which demonstration may be performed via remote access or via a mutually agreed upon alternative method. Upon successful completion of the Validation Process, each party shall confirm in writing to the other party that the integration has been validated. You shall not make available the Integrated Products for use by anyone else until you have successfully completed the Validation Process and the parties have confirmed validation in writing. The parties acknowledge and agree that the Validation Process is conducted in a controlled environment and that we make no commitments to you or anyone else that the successful completion of the validation process will necessarily lead to the successful performance of the Offering with the Integrated Products.

Subject to the terms and conditions of this Agreement, you grant us a non-exclusive, non-transferable license during the term of this Agreement to access a limited portion of the Integrated Products solely for our training, evaluation, and integration of the Integrated Products with the Offerings. We may not grant any license of the Integrated Products to any third party as part of such non-production use.

5.1. We, at our sole discretion, may refer a lead to you for potential sales of products and/or services (a “Katalon Proposed Lead”) by giving you a written notice. If the Katalon Proposed Lead (a) is not a potential customer that you are already engaging, and (b) has not been referred or registered by any other party, you shall send us a written approval acknowledging our registration of such Katalon Proposed Lead. If the Katalon Proposed Lead does not meet these criteria, you will promptly notify us, providing a reasonable explanation why the lead is not considered qualified.

5.2. You may, at your sole discretion, contact and seek business opportunities with Katalon Proposed Leads. A Katalon Proposed Lead becomes a qualified referral (“Katalon Qualified Referral”), making us eligible for a Katalon Referral Commission, only if: (a) our registration of such Proposed Lead has been approved by you in writing; (b) we have not entered into any agreement for a resale of your products and/or service with such Katalon Proposed Lead; and (c) such Katalon Proposed Lead enters into an agreement with you for purchase of your products and/or services.

5.3. You will pay us a commission equal to a percentage indicated in the Partnership Registration Form of any payments you receive from each Katalon Qualified Referral for your products and/or service. This commission will be paid within thirty (30) days of your receipt of full payment from the referral. If this Agreement is terminated or expired (except due to our breach), you will pay us the commission under this section for the Katalon Qualified Referral determined prior to the date of termination or expiration of this Agreement.

You may refer a lead to us in order for us to sell our Offerings (a “Proposed Lead”) by filling in the Opportunity Registration Form we provide or as available on our website. You shall not refer a direct competitor of Katalon or any entity being a Restricted Party as a Proposed Lead. If the Proposed Lead (a) is not a potential customer that Katalon is engaging, and (b) has not been referred or registered by any other party, we will send you a written approval following the submission of the Opportunity Registration Form acknowledging your registration of such Proposed Lead. If the Proposed Lead has been previously identified by Katalon or referred by another party, you will be promptly notified and shall not be entitled to receive a Referral Commission (as defined below).

We may, at our sole discretion, contact and seek business opportunities with Proposed Leads.

A Proposed Lead becomes a qualified referral (“Qualified Referral”), and you become eligible for a Referral Commission only if: (a) your registration of such Proposed Lead has been approved by us in writing; (b) you have not entered into any agreement for sales of Offerings with such Proposed Lead; and (c) such Proposed Lead enters into an agreement with us for sales of our Offerings within ninety (90) days from the date of the written approval of such Proposed Lead registration.

You will be paid a commission equal to a percentage indicated in the Partner Program Terms of the Net Revenue for each Qualified Referral (the “Referral Commission”).

Referral Commission will be paid (i) after we fully receive the full Net Revenue from a Qualified Referral, and (ii) within thirty (30) days upon our receipt of your invoice for such Referral Commission amount. In case this Agreement is terminated or expired, except in the event of termination for your breach, Katalon will only pay you the Referral Commission on the Net Revenue received within 30 days following termination of this Agreement for the Qualified Referral determined prior to the date of termination or expiration of this Agreement.

Welcome to the Katalon Offerings! Katalon, Inc. and/or its Affiliates (“Katalon”, “we”, “us” or “our”) provide the Offerings subject to the following conditions.

Please review these Customer Terms of Use (these “Terms”) carefully. These Terms are between you and the Katalon entity that owns or operates the Offering that you are using or accessing. “You” or “your” means, unless otherwise indicated, your employer or another entity you represent, as applicable. You hereby represent that (a) you have full legal authority to bind your employer or such entity (as applicable) to these Terms; and (b) after reading and understanding these Terms, you agree to these Terms on behalf of your employer or the respective entity (as applicable), and these Terms shall bind your employer or such entity (as the case may be). PLEASE NOTE THAT YOU ARE DEEMED AS AN AUTHORIZED REPRESENTATIVE OF YOUR EMPLOYER OR AN ENTITY (AS APPLICABLE): (I) IF YOU ARE USING YOUR EMPLOYER OR AN ENTITY’S EMAIL ADDRESS IN REGISTERING AN ACCOUNT TO USE THE OFFERINGS; OR (II) IF YOU ARE AN ADMIN (AS DEFINED BELOW).

A glossary of defined terms is included at the end of these Terms.

Account. You must register for an account with us in order to place Orders or access and use the Offerings. When creating a User Account or when you are added to a User Account, you: (a) agree to provide us with accurate, complete, and current registration information for all Users; (b) acknowledge that it is your and each User’s responsibility to ensure that such User’s password remains confidential and secure; (c) agree that you are fully responsible for all activities that occur under User Accounts; and (d) undertake to promptly notify us in writing if you become aware of any unauthorized access or use of User Accounts and/or any breach of these Terms. We may assume that any communications we receive under User Accounts have been made by you. You will be solely responsible for unauthorized usage of the User Account by either you or any other User or third party on your behalf.

Administration. The Offerings allow you to specify Users, including Admins. An Admin may have the ability to make Orders or enable features, products or services (which may incur fees); create, de-provision, monitor or modify User Accounts, and set User usage permissions or subscription renewal options; integrate or disable integration with Plugins and third-party products or services; and manage Your Data. You are responsible for whom you allow to become Admins and any actions they take, including as described above. You agree that our responsibilities do not extend to the internal management or administration of the Offerings to you.

Users. Only Users may access and use the Offerings. Some Offerings may allow you to designate different types of Users, in which case pricing and functionality may vary according to the type of User. You are responsible for the actions taken by your Users, and the compliance with these Terms by all Users, including what Users do with Your Data, and for all fees incurred by Users (or from adding Users). Any Offerings identified in an Order as being provided on per “user” basis have a specific natural person associated with each subscription, who must be identified in the User Account, and may not be changed in a manner to circumvent the number of Users permitted. A User associated with a “user” based subscription may access and use the applicable Offerings on any Internet browser and/or computer within your internal enterprise network, provided that only one User is assigned to a User Account and multiple individuals may not share the same User Account.

Access to Offerings. Subject to these Terms and during the applicable Subscription Term, you are granted a non-exclusive, non-sublicensable and non-transferable right for Users to access and use the Offerings for (a) your internal business purposes for your and your Affiliates’ benefits, and (b) the internal business purposes of Your Customers as part of the services that you provide to them, as applicable.

Use by Your Affiliates, Contractors, and Your Customers. You are only permitted to add your Affiliates, contractors, and Your Customers as Users (“Additional Users”) to access and use the Offerings, provided that:

• Use by each of your Additional Users is subject to these Terms, and you remain responsible for each of your Additional Users’ compliance with these Terms;
• Contractors are permitted to use the Offerings solely on your behalf as necessary to provide services to you; and
• Your Customers are permitted to use the Offerings as part of the services that you provide to them solely with respect to your products and services.

Ownership and General Restrictions. As between the parties, we exclusively own and reserve all right, title, and interest in and to the Offerings, the Documentation, our Confidential Information, and the Usage Data. All rights not expressly granted hereunder are reserved by us and our licensors. Usage Data shall be subject to our publicly-posted privacy policy and Privacy Law. Except for the limited rights expressly granted above, we reserve all rights, title and interest in and to the Offerings, including all intellectual property rights therein. No rights are granted to you hereunder other than as expressly set forth in these Terms. Without limiting the generality of the foregoing, except as otherwise expressly permitted in these Terms, you will not (a) use the Offerings for the benefit of any third party, or permit any third party to use the Offerings (other than as expressly permitted with respect to your Additional Users), (b) reproduce, modify, adapt or create derivative works of the Offerings, (c) reverse engineer, disassemble, decompile, translate or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to the Offerings, except to the extent expressly permitted by applicable law (and then only upon advance notice to us), (d) remove or obscure any proprietary or other notices on the Offerings, (e) attempt to gain unauthorized access to the Offerings, interfere with, or otherwise circumvent any security measures or mechanisms intended to limit your use within the Offerings, (f) use the Offerings for competitive analysis, product benchmark or to build competitive products; (g) publicly disseminate information regarding the performance of any products or services on the Offerings; (h) use the Offerings to transmit or store any malicious code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses; or (i) encourage or assist any third party to do any of the foregoing.

Fees. Unless otherwise set forth on an Order, you will be charged the applicable rates available at https://katalon.com/pricing or as otherwise made available on the Offerings. You agree to pay us the fees for the Offerings. Unless otherwise set forth in an applicable Order, payment shall be due within thirty (30) days of receipt of our invoice and shall be made in United States dollars, and invoices may be submitted through your Admin’s User Account or via email to the email address(es) you designate in your Admin’s User Account. Subject to any payment dispute (below), payment obligations are non-cancelable and all fees, once paid, are non-refundable. You agree (a) that any and all discounts, incentives and promotional pricings offered to you are conditioned upon your timely payments of all fees due hereunder; and (b) to pay a late charge of one and one-half percent (1.5%) per month (or part of a month), or the maximum lawful rate permitted by applicable law, whichever is less, for all amounts, not subject to a good faith dispute (below), and not paid when due. We may suspend the provision of the Offerings to any and all of your User Accounts until all fees due are paid in full. You are prohibited from creating new accounts until all fees due are paid in full.

Taxes. All fees are exclusive of Taxes. Amounts payable to us under these Terms are payable in full to us without deduction and are net of Taxes. You will pay all Taxes associated with the Offerings and these Terms, excluding any taxes based on our net income, property, or employees. We reserve the right to invoice for Taxes if required under the applicable taxing jurisdiction unless you provide us with an exemption certificate.

Increasing Usage Limits. You may add users, increase limits, or otherwise increase the Scope of Use of the Offerings by placing a new Order or modifying an existing Order, as permitted on the Offerings. Unless otherwise specified in the applicable Order, we will charge you for any increased use at our then-current rates, prorated for the remainder of the then-current Subscription Term.

Payment Disputes. You will notify us in writing within thirty (30) days of the date we bill you for any fees that you wish to dispute. Where you are disputing any fees, you must act reasonably and in good faith and will cooperate diligently with us to resolve the dispute. We will not charge you a late fee or suspend the provision of the Offerings for unpaid fees that are in dispute, unless you fail to cooperate diligently with us, or we determine the dispute is not reasonable or not brought in good faith by you.

Ownership Rights. As between the parties, you retain all right, title and interest (including any and all intellectual property rights) in and to Your Data and any modifications made thereto in the course of the operation of the Offerings. Subject to these Terms, you hereby grant to us a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of, and display (a) Your Data solely to the extent necessary to provide the Offerings to you, or to prevent or address service or technical problems under these Terms, or as may be required by law; and (b) Your Data for any of our internal business purposes, provided that such data is transformed and maintained in anonymized and aggregated form such that it does not contain any personal data subject to Privacy Law.

Use of Your Data. You will ensure that your use of the Offerings and all Your Data is at all times compliant with these Terms, your privacy policies, and all applicable laws and regulations and conventions, including Privacy Law. You are solely responsible for the quality, integrity, accuracy, content and legality of all Your Data. You represent and warrant that you have sufficient rights in Your Data, provided any required notices and received any required consents as necessary to grant the rights granted to us hereunder and that Your Data does not infringe or violate the intellectual property, publicity, privacy or other rights of any third party. You agree not to upload to the Offerings (a) any patient, medical or other protected information regulated by HIPAA or any similar federal or state laws, rules or regulations or (b) any financial or accounting data or payment information, other than your credit card information for account payment processing of the fees, which is processed and stored by our third-payment payment service provider and not processed or stored by us. Your Data hosted or otherwise processed by us shall be subject to the Data Processing Addendum (“DPA”) available at https://katalon.com/terms#dpa.

Data Security. We will implement and maintain administrative, physical, and technical safeguards for the protection of the security, confidentiality and integrity of, and prevention of any unauthorized use, access, processing, destruction, loss, alteration, or disclosure of, Your Data, in accordance with applicable industry standards. We will notify you immediately following discovery of any suspected breach or compromise of the security, confidentiality, or integrity of Your Data. Written notification provided pursuant to this paragraph will include a brief summary of the available facts, the status of our investigation, and if known and applicable, the potential number of persons affected by release of data relating to such person.

Removals and Suspension. We have no obligation to monitor any content uploaded to the Offerings. Nonetheless, if we deem such action necessary based on your violation of these Terms or in response to takedown requests for violations of third-party intellectual property rights, we may remove Your Data from the Offerings and/or suspend your access to the Offerings. We will use reasonable efforts to provide you with advance notice of removals and suspensions when practicable, but if we determine that your actions endanger the operation of the Offerings or other users, we may suspend your access or remove you’re Your Data immediately without notice. We have no liability to you for removing or deleting you’re Your Data from or suspending your access to any Offerings.

Non-Use and Nondisclosure. Each party shall treat as confidential all Confidential Information of the other party, shall not use such Confidential Information except to exercise its rights and perform its obligations under these Terms, and shall not disclose such Confidential Information to any employee or third party, except to those Users, employees, advisors or representatives of the recipient who are under a contractual or fiduciary duty of confidentiality similar in content to the provisions hereof and whom the recipient will remain responsible for hereunder (“Representatives”) and who are required to have access to such Confidential Information in order to perform the obligations under these Terms. Without limiting the foregoing, each of the parties shall use at least the same degree of care it uses to prevent the disclosure of its own confidential information of like importance, which care shall be no less than reasonable care, to prevent the disclosure of Confidential Information of the other party.

Exceptions. The receiving party may disclose Confidential Information of the disclosing party if so required pursuant to a regulation, law, subpoena, or court order (collectively, “Compelled Disclosures”), provided the receiving party gives the disclosing party notice of a Compelled Disclosure (to the extent legally permitted). The receiving party will provide reasonable cooperation to the disclosing party in connection with a Compelled Disclosure at the disclosing party’s sole expense.

Feedback. You may provide suggestions, feedback and other information to us regarding possible improvements in the operation, functionality or use of the Offerings (“Feedback”). You hereby grant us the perpetual, irrevocable, sublicensable right to use, copy, modify, create derivative works of and otherwise fully exploit the Feedback to improve the operation, functionality or use of our existing and future offerings and commercializing such offerings.

Changes to these Terms. We may modify the terms and conditions of these Terms from time to time, with notice to you in accordance with the provision on Notices below or by posting the modified Terms on our website; provided however, any modifications to these Terms will take effect at the next renewal of your Subscription Term and will automatically apply as of the renewal date unless you elect not to renew. Notwithstanding the foregoing, in some cases (e.g., to address compliance with Laws, or as necessary for new features) we may specify that such modifications become effective during your then-current Subscription Term. If the effective date of such modifications is during your then-current Subscription Term and you object to the modifications, then (as your exclusive remedy) you may terminate your affected Orders upon notice to us, and we will refund to you any fees you have pre-paid for use of the affected Offering for the terminated portion of the applicable Subscription Term. To exercise this right, you must provide us with notice of your objection and termination within thirty (30) days of us providing notice of the modifications. For the avoidance of doubt, any Order is subject to the version of these Terms in effect at the time of the Order.

Term. These Terms will commence upon your acceptance of an Order, your creation or access to a User Account, or your download, installation, activation or use of the Offerings and will remain in effect until otherwise terminated as set forth below.

Termination. A party may terminate any Order if the other party commits any material breach of such Order (or the provisions of these Terms applicable to the particular Order) and does not remedy the material breach within thirty (30) days after the date that it receives notice of the breach. These Terms may be terminated by either party immediately upon written notice, in the event that: (a) the other party files a petition, in bankruptcy, seeking any reorganization, arrangement, composition, or similar relief under any Law regarding insolvency or relief for debtors, or makes an assignment for the benefit of creditors; (b) a receiver, trustee, or similar officer is appointed for the business or property of such party; or (c) the other party adopts a resolution for discontinuance of its business or for dissolution. We may terminate these Terms or any Orders in the event you fail to make any payments of fees when such payments are due. Termination of an Order shall not be deemed a termination of these Terms. Termination of these Terms shall, however, terminate all outstanding Orders. Either party may also terminate these Terms upon no less than thirty (30) days’ prior written notice to the other party for any reason, if at such time there are no outstanding Orders then currently in effect.

Suspension of the Offerings. We may suspend use of the Offerings immediately upon notice to you for cause if we, in good faith, determines: (a) that you or your Users materially breach (or we, in good faith, believes that you or your Users have materially breached) any provision of these Terms, and such breach violates a third party right or materially impacts the performance of the Offerings or other users’ enjoyment of the Offerings; (b) there is an unusual and material spike or increase in your use of the Offerings and that such traffic or use is fraudulent or materially and negatively impacting the operating capability of any products or services on the Offerings; (c) that our provision of the products or services on the Offerings is prohibited by applicable Law; (d) there is any use of the Offerings by you or your Users that threatens the security, integrity, or availability of the Offerings; or (e) that information in your User Account or User Accounts of your Users are untrue, inaccurate, incomplete or otherwise fraudulent.

Subscription Auto-Renewal. To ensure that you will not experience any interruption or loss of services, your Offerings include an automatic renewal option by default, according to which, unless you disable the auto-renewal option or cancel your subscription prior to its expiration, the subscription will automatically renew upon the end of the then applicable Subscription Term for a period of the like term. You will provide any notice of non-renewal through the means we designate, which may include account settings on the Offerings or contacting our support team. Canceling your subscription means that you will not be charged for the next billing cycle, but you will not receive any refunds or credits for amounts that have already been charged. Unless specified in an applicable Order, all renewals (a) are subject to the applicable products or services continuing to be offered on the Offerings, (b) will be charged at the then-current prices for the applicable Offerings, (c) will exclude any discount or other promotions offered during the prior Subscription Term, and (d) are subject to any changes in usage policies, usage limits or other Scope of Use. You agree that we may bill your credit card or other payment methods for renewals, additional users, overages to set limits or Scopes of Use, expenses, and unpaid fees, as applicable. Either party may elect to not renew an Order by giving the other party at least thirty (30) days’ written notice to terminate such Order before the beginning of the next Subscription Term for such Order, and such termination shall be effective at the end of the then-current Subscription Term.

Effect of Termination. Upon any termination or expiration of these Terms or any applicable Order, we shall no longer provide the applicable Offerings to you, and you shall promptly cease and cause your Users to promptly cease using the applicable Offerings. Upon termination of these Terms, each party shall promptly return or destroy all Confidential Information of the other party in its possession, except that each party may keep a copy of the other party’s Confidential Information for archival purposes, or otherwise in accordance with their respective internal recordkeeping procedures, or in compliance with applicable Laws, and will not be required to delete or destroy any copies maintained in its normal-course back-up media. After termination of any Order, we will have no obligation to store and/or make available Your Data for the applicable Offerings, and we may delete the same. All rights and obligations of the parties which by their nature are reasonably intended to survive such termination or expiration will survive termination or expiration of these Terms and each Order.

Offering Warranty. We warrant that during the Subscription Term, the Offerings will conform, in all material respects, with the Documentation. Such warranty shall only apply if the Offerings have been utilized by you in accordance with the Order, the Documentation, and these Terms. For any breach of our representation and warranty, your exclusive remedies are those described in the “Termination” section.

Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, WE MAKE NO, AND DISCLAIMS ALL, WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WE DO NOT REPRESENT OR WARRANT THAT THE OFFERINGS WILL BE ERROR-FREE OR THAT THE OFFERINGS WILL MEET YOUR OR YOUR USERS’ REQUIREMENTS OR THAT ALL ERRORS IN THE OFFERINGS WILL BE CORRECTED, AND WE MAKE NO WARRANTIES AND DISCLAIM ALL WARRANTIES WITH RESPECT TO ANY COMPONENTS OR APPLICATIONS CREATED OR PROVIDED BY A PARTY OTHER THAN US. THE WARRANTIES STATED IN THIS SECTION ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY US. You agree that any use or purchase of our products or services shall not be contingent on the delivery of any future functionality or features, or dependent on any oral or written comments we make regarding future functionality or features.

Our Indemnification. We will defend you, your Affiliates and their respective officers, directors, employees and agents (collectively, the “Customer Indemnitees”), against any claim, demand, suit or legal proceeding made or brought against any of the Customer Indemnitees by a third party alleging that the Offerings infringe or misappropriate such third party’s U.S. intellectual property rights (a “Claim Against Customer”), and will indemnify the Customer Indemnitees from any damages (including reasonable attorney fees and costs) finally awarded against any of the Customer Indemnitees as a result of, or for amounts paid under a court-approved settlement of, a Claim Against Customer. If a Claim Against Customer is brought or is likely, in our sole opinion, to be brought, we will, at our option and expense (a) obtain the right for you to continue using the Offering; (b) replace or modify the affected Offering so that it becomes non-infringing; or (c) upon notice to you, terminate these Terms or your use of the affected Offerings, provided that in the case of subsection (c) we will promptly refund to you the prorated portion of any unearned pre-paid subscription fees paid hereunder for the affected Offerings. Our obligations in this section do not apply to: (i) any products, services, technology, materials or data created or provided by a party other than us (including without limitation Your Data), (ii) any part of the Offerings made in whole or in part in accordance to your specifications, (iii) any modifications not made by us, (iv) any combination with other products, processes or materials not provided by us (where the alleged damages, costs or expenses arise from or relate to such combination), (v) where you continue the allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) your use of the Offerings not strictly in accordance with these Terms, the Scope of Use or any Documentation, ((i) through (vi), the “Excluded Claims”).

Your Indemnification. You will defend us, our Affiliates and their respective officers, directors, employees and agents (collectively, the “Katalon Indemnitees”) against any claim, demand, suit or proceeding made or brought against any or all of the Katalon Indemnitees by a third party arising out of or attributable to the Excluded Claims, and will indemnify the Katalon Indemnitees from any damages, reasonable attorney fees and costs finally awarded against the Katalon Indemnitees as a result of, or for any amounts paid under a court-approved settlement of an Excluded Claim.

Indemnification Procedure. Each party’s obligation to indemnify the other party is conditioned on the party seeking indemnification: (a) promptly notifying the indemnifying party in writing of any claim, suit or proceeding for which indemnity is claimed, provided that failure to so notify will not remove the indemnifying Party’s obligation except to the extent it is prejudiced thereby, (b) allowing the indemnifying party to solely control the defense of any claim, suit or proceeding and all negotiations for settlement; provided that the indemnifying party shall not settle any claim that requires the indemnified party to admit fault without the indemnified party’s prior written consent (such consent not to be unreasonably withheld or delayed), and (c) giving the indemnifying party reasonable assistance in the defense and settlement of any claim, suit or proceeding for which indemnity is claimed.

Sole Remedy. The foregoing indemnity obligations state the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this section.

Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY UNDER THESE TERMS OR OTHERWISE, REGARDLESS OF THE FORM OF CLAIM OR ACTION: (I) IN AN AMOUNT THAT EXCEEDS THE FEES YOU HAVE PAID FOR THE OFFERINGS UNDER THE APPLICABLE ORDER IN THE PRECEDING 12 MONTHS; OR (II) FOR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR INDIRECT DAMAGES OR COSTS (INCLUDING WITHOUT LIMITATION, LOSS OF GOODWILL OR PROFIT, BUSINESS INTERRUPTION, LOSS OF BUSINESS) IN CONNECTION WITH THE OFFERINGS OR THESE TERMS, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS. The limitations of liability set forth in this paragraph will not apply to: (a) each party’s violation of the other party’s intellectual property rights; (b) your payment obligations; and (c) a party’s liability related to (i) its indemnification obligations, (ii) its breach of its confidentiality obligations, (iii) its breach of any restrictions on the access or use of the Offerings, and/or (iv) gross negligence or intentional misconduct, or (c) any obligation where the applicable Law does not allow the limitation(s) thereof. The parties hereby acknowledge that the provisions of this paragraph allocate the risks under these Terms and the applicable Order which are acknowledged and agreed by and between you and us, and our pricing reflects this allocation of risk and the limitation of liability specified herein.

Assignment. Neither these Terms nor any rights or obligations under these Terms may be assigned or otherwise transferred by either party without the prior written consent of the other party; provided that, such prior written consent is not required for any assignment by either party to its Affiliates or to any successor of substantially all of its business or assets to which these Terms relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. These Terms shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.

Governing Law. These Terms shall be governed by the laws of the State of Georgia, USA, without regard to the conflicts of law provisions of any jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms. To the extent that any lawsuit is permitted under these Terms, the parties hereby expressly consent to the personal and exclusive jurisdiction and venue of the state and federal courts located in Fulton County, Georgia, USA (to the extent not addressed by arbitration below, if any).

Dispute Resolution. In the event of any dispute, claim, or controversy in connection with these Terms (collectively, “Disputes”), each party’s senior representatives will, in good faith, attempt to resolve the Dispute. If the parties are unable to resolve the Dispute within thirty (30) days or within such other time period as the parties may agree in writing, then the parties may commence binding arbitration under JAMS’ Comprehensive Arbitration Rules and Procedures. The parties will share equally the fees and expenses of the JAMS arbitrator. The arbitration will be conducted by a sole arbitrator mutually agreed to between the parties within twenty (20) days of receipt by respondent of the request for arbitration or, failing that, by JAMS under its then prevailing rules. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The arbitrator will have the authority to grant specific performance or any other equitable or legal remedy, including provisional remedies, provided that the arbitrator will have no authority to award punitive damages or consequential damages or liquidated damages. Each party will be responsible for its own incurred expenses arising out of any dispute resolution procedure. Any arbitration proceedings will be conducted in the English language and will take place in Fulton County, Georgia, USA.

Injunctive Relief. Nothing contained in these Terms shall deny either party the right to seek immediate injunctive or other equitable relief from a court of competent jurisdiction: (a) in the context of a bona fide emergency or prospective irreparable harm to preserve the status quo pending resolution of a dispute between the parties or (b) where a party alleges or claims a violation of any agreement regarding intellectual property, confidential information or noninterference. Such an action may be filed and maintained notwithstanding any ongoing discussions between the parties or any ongoing arbitration proceeding.

Additional Customer Terms. Additional terms and conditions specific to certain products and services in the Offerings are set forth in the Addendum (the “Additional Customer Terms”). If you use any of the Offerings described in the Additional Customer Terms, the Additional Customer Terms will apply with respect to such Offerings, in addition to these Terms, and such Additional Customer Terms are incorporated herein by reference in their entirety.

Notice. All notices, consents and other communications hereunder shall be provided in writing and shall be delivered personally or by email or registered or certified mail (return receipt requested) to the parties at the addresses set forth on any Orders or in any User Account (or such other address as may have been furnished by or on behalf of such party by like notice); provided that, for any notices sent to us, a copy of the notice will be sent to legal@katalon.com. We may provide notice to you using your User Account or in-product notifications, or to your Admin contact information, including your Admin’s email address. You agree that any electronic communication will satisfy any applicable legal communication requirements, including that such communications be in writing. Communications sent by email shall be deemed delivered upon dispatch. Communications sent by registered or certified mail shall be deemed delivered upon receipt.

Publicity Rights. You agree that we may identify you as a customer and use your name, logo and a description of your use case on our website and in marketing and promotional materials, subject to your standard trademark usage guidelines that you provide to us. We will promptly stop doing so upon your request sent to legal@katalon.com.

Export Compliance. The Offerings are subject to export restrictions by the United States government and may be subject to import restrictions by certain foreign governments, and you agree to comply with all applicable export and import laws and regulations in your access to, use of, and download of the Offerings (or any part thereof). You shall not, directly or indirectly, import, export, re-export or transship the Offerings, services, or technical information in violation of any applicable export control and economic sanctions laws and regulations of any country having jurisdiction over the Offerings, or parties to these Terms (“Export Laws”), including without limitation, the U.S. Export Administration Regulations and those economic sanctions regulations maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, and any other economic sanctions imposed by the U.S Government upon any country, territory, or person. You represent and warrant that (a) you are not the subject or target of, and that you are not located in a country or territory (including without limitation, Belarus, Russia, North Korea, Cuba, Iran, Syria, and Crimea) that is the subject or target of, economic sanctions of the United States or other applicable jurisdictions, and (b) none of Your Data is controlled under the U.S. International Traffic in Arms Regulations or similar Laws in other jurisdictions. You agree not to use or provide the Offerings for any prohibited end use, including to support chemical, biological or nuclear weapons, or missile technology, or military-intelligence, without the prior permission of the U.S. government. You agree to comply with all applicable Export Laws and will indemnify, defend, and hold us harmless from any claim against us due to your violation or alleged violation of the Export Laws.

U.S. Government End-Use Provisions. The following applies to all acquisitions of the Offerings and Documentation by or for the U.S. government or by any prime contractor or subcontractor under any contract, grant or other activity with the U.S. government. The Offerings and Documentation and services utilizing the Offerings and Documentation provided under these Terms are “commercial items” as that term is defined at 48 C.F.R. 2.101 consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and other applicable acquisition regulations and are provided to the U.S. Government only as a commercial item. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202, all U.S. Government users and licensees acquire the Offerings and its associated services and Documentation with only those rights and are subject to the restrictions set forth in these Terms. Notwithstanding the foregoing, the Offerings and its associated services and Documentation may not be acquired by the U.S. government pursuant to a contract incorporating clauses prescribed by FAR Subpart 27.4 or DFARS Subpart 227.4.

Force Majeure. Nonperformance of either party, except for the making of payments, shall be excused to the extent that performance is rendered impossible by strike, fire, flood, earthquake, governmental acts or orders or restrictions, cyber-attacks, information security and data breaches caused by third parties, failure of cloud services, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of such party (collectively, “Force Majeure Events”). The party affected by a Force Majeure Event will take all reasonable actions to minimize the consequences of any such event.

Entire Agreement; Amendment. These Terms together with the Orders, and any attachments, schedules, exhibits and addenda (including without limitations, the Additional Customer Terms) referenced herein (the “Attachments”) constitute the entire agreement between the parties regarding the subject matter hereof. All prior or contemporaneous agreements, proposals, understandings, and communications between the parties regarding the subject matter hereof, whether oral or written, are superseded by and merged into these Terms. No modification or amendment to these Terms, nor any Attachment or Order, will be binding unless by an agreement in writing signed by both parties that specifically references and clearly states the intention to amend these Terms, such Attachment or such Order, as applicable. Any terms and conditions set forth in an Order shall solely be applicable to such Order and shall not affect any other Orders between the parties. In the event of any conflict between these Terms and those of any Order or Attachment, these Terms will control (unless such Order or Attachment is intended to control), and the terms of an Order, an Attachment, and these Terms will prevail over any conflicting provision in any purchase order or any other instrument regardless of execution by the parties. You may not use a purchase order or other instrument not issued by us to modify or add to these Terms, and all such attempted modifications or additions to these Terms in any such purchase order or instrument shall be void and of no effect, even if accepted or signed by both parties. Any purchase orders that are accepted by us are accepted expressly subject to these Terms without regard to any additional or conflicting terms therein. If you have a separate written agreement with us for your use of the Offerings, these Terms will not apply to you, unless that written agreement does not cover a particular product or service, in which case, these Terms apply solely to your use of that particular product or service.

Other Miscellaneous Terms. The relationship between the parties to these Terms is and shall be that of independent contractors. It is expressly agreed that nothing in these terms shall be construed to create or imply a partnership, joint venture, agency relationship or contract of employment. There are no third-party beneficiaries to these Terms. Any waiver of the provisions of these Terms or of a party’s rights or remedies under these Terms must be in writing referencing these Terms to be effective. Failure, neglect, or delay by a party to enforce the provisions of these Terms or its rights or remedies at any time shall not be deemed to be a waiver of such party’s rights under these Terms and shall not prejudice such party’s right to take subsequent action. A party’s waiver of the performance of any covenant or any breach is not to be construed as a waiver of any succeeding breach or of any other covenant. If any term, condition, or provision in these Terms is found to be invalid, unlawful or unenforceable to any extent, the invalid, unlawful or unenforceable term, condition or provision shall be severed from the remaining terms, conditions and provisions, which shall continue to be valid and enforceable to the fullest extent permitted by law. The language of these Terms, any Attachments and all Orders is English. All contract interpretations, notices and dispute resolutions shall be in English. Translations of any of these documents are not to be construed as official or original versions of the documents.

Certain capitalized terms are defined below, and others are defined contextually in these Terms.

“Account Profile” means any profile or registration information (including profile or information relating to your organization or an individual User) that you or a User provides in the User Account, which may include without limitation, your organization’s name, an individual User’s name, email address and other contact information, username and password, and subscription, Order and payment information.

“Admin” means a person (who is a User) designated by you to administer any Offerings to Users on your behalf.

“Affiliate” means any entity that directly or indirectly controls or is controlled by, or is under common control with, the party specified. For purposes of this definition, “control” means direct or indirect ownership of more than fifty percent (50%) of the voting interests of the subject entity.

“Cloud Products” means our hosted or cloud-based services and solutions, including any client software we provide as part thereof.

“Confidential Information” means any material or information disclosed by either party to the other party either directly or indirectly, relating to these Terms, in writing, orally or by inspection of tangible objects (including without limitation material or information relating to such party’s research, development, know-how, products, product plans, services, customer, customer lists, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, marketing, finances, or other business information or trade secrets), which is designated as “Confidential,” “Proprietary” or some similar designation, or information the confidential or proprietary nature of which is reasonably apparent under the circumstances. Confidential Information shall not include information which (a) becomes a part of the public domain through no act or omission of recipient; (b) was in recipient’s lawful possession prior to the disclosure by discloser and had not been subject to limitations on disclosure or use, as shown by recipient’s files existing at the time of disclosure; (c) is independently developed by recipient’s employees or independent contractors who have not had access to the Confidential Information; or (d) is lawfully disclosed hereafter to recipient, without restriction, by a third party who did not acquire the information directly or indirectly from discloser.

“Consultants” means your representatives, consultants, contractors, agents or other third parties who use or access the Offerings solely on your behalf as necessary to provide services to you.

“Your Customer” means a customer for your testing services and the resulting output and who has a separate subscription to the applicable Offerings that you are providing such customer support therewith.

“Documentation” means our standard published documentation for the Offerings, including any usage guides and policies, currently available at https://docs.katalon.com/docs.

“Laws” means all applicable local, state, federal and international laws, regulations and conventions, including those related to Privacy Law and Export Laws.

“Offerings” means the products and services made available by us on or through the Software or Cloud Products (including without limitations, the Free Offerings and Pre-Released Offerings), as designated on an Order and within the Scope of Use.

“Order” means our applicable online order form(s), flows, in-product screens or other ordering document or process approved by us that specifies, as applicable, mutually agreed upon (a) Offerings you are ordering from us (either directly by you or indirectly through a Reseller in accordance to your Reseller Agreement), (b) Scope of Use, and (c) (for a paid Order) the amount or rate you will be charged, the billing and renewal terms, applicable currency, and form of payment.

“Privacy Law” means, as applicable, the laws, regulations or other legal requirements relating to data protection, privacy, security or otherwise with respect to the use, collection, retention, storage, security, disclosure, transfer, disposal, and other processing of personal data.

“Reseller” means a reseller, distributor or partner authorized by us in writing to resell or offer Offerings to you, in the case where you purchase such Offerings from such authorized reseller, distributor or partner.

“Scope of Use” means your authorized scope of use of an applicable Offering in compliance with the applicable Documentation and as designated on an Order, which may include (as applicable): (a) Subscription Terms, (b) number and type of Users or organizations, (c) numbers of licenses, copies, instances, nodes, executions or parallel execution sessions, (d) usage metrics, usage limits, data retention period, or other scope of use parameters, or (e) entity, division, business unit, website, field of use or other restrictions or billable units.

“Software” means our commercially available downloadable, standalone or on-premise software products, including such products hosted on your cloud-based services and mobile applications of such products. Your Order will specify the Software that you may use.

“Subscription Term” means your permitted subscription period for a subscription-based Offering designated on an Order and any renewal thereof.

“Taxes” means any applicable taxes, levies, duties, or other similar exactions imposed by a legal, governmental, or regulatory authority in any applicable jurisdiction, including, without limitation, sales, use, value-added, consumption, communications, or withholding taxes.

“Test Content” means test scripts, records and other test data you send to or create and store in the Offerings, including the testing project name and date, test execution results (log, image, video) and reports, and execution environment information.

“Usage Data” means information relating to your relationship with us, including User and User Account information, billing details, authorization information (e.g., username, password, two factor authentication), as well as system logs and user account activity and other information relating to the provision, use and performance of various aspects of the Offerings, Test Content, and related systems and technologies, including without limitation operating speed, memory usage, throughput, bandwidth, errors and error rates, user logins, feature usage, license usage, performance data, and other information collected in the general operation of the Offerings.

“User Account” means an account associate with a User that contains an Account Profile, established by you or an Admin to enable the User to use or access the Offerings within your organization. A User Account shall not be shared with multiple Users.

“Users” means the specific natural persons that are your employees or Additional Users, whom you permit and invite to use the applicable Offerings for your benefit or as otherwise permitted for such Additional Users, and for whom you have paid the required fees (as applicable for paid Offerings).

“Your Data” means your Test Content, data, content, videos, images, objects, patterns, or other materials of any type that we host or otherwise process for you in performance of the Offerings. Your Data does not include Usage Data.

If you use any of the Offerings below, these Additional Customer Terms (“Additional Terms”) will apply with respect to such Offerings, in addition to the Customer Terms of Use (the “Customer Terms”, the Customer Terms together with the Additional Terms shall hereafter be referred to as this “Agreement”). All defined terms used herein but not otherwise defined, shall have the meanings given to them in the Customer Terms.

If you download, purchase or otherwise use Software as part of the Offerings, you agree to comply with these additional restrictions:

• Upon termination of any Order for the Software for any reason, you will promptly at our option either return or destroy all copies of the Software and any related Documentation in your possession or control.
• Unless otherwise specified in an Order, for each Software license that you purchase, you may install one (1) production instance of the Software on systems owned or operated by you or one of your Users.
• Use of the Software is limited to use in object-code form only. With respect to your use of the Software for Your Customers as permitted in the Agreement, you may not provide access or use of your copies of the Software to Your Customers or include the Software as part of a product, service or other offering you provide to Your Customers. In addition, you must verify that each of Your Customers has its own copy of the Software.
• Except for the limited rights expressly granted in this Agreement, we reserve all rights, title and interest in and to the Software, including all related intellectual property rights. No rights are granted to you hereunder other than as expressly set forth above in this Agreement. Without limiting the generality of the foregoing, you may not (a) distribute outside your organization, sublicense, copy, modify, or publicly display the Software, (b) use on behalf of any third party, or permit any third party to use, the Software (except for the limited use for Additional Users described in the Customer Terms), (c) decompile or reverse engineer the Software, (d) remove any proprietary rights notices on the Software, or (e) attempt to gain unauthorized access to the Software, interfere with, or otherwise circumvent any security measures or mechanisms to limit your use within the Software. If you believe you are entitled to reverse engineer the Software because of rights that may be granted as a matter of local law, such as the Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs (as amended), then (i) you shall first request the technical information from us, (ii) this technical information may be used only for the purposes of ensuring interoperability and compatibility, and (iii) the technical information will be considered our Confidential Information and treated as such according to this Agreement.
• You acknowledge that the Software may include open source and freeware software and materials licensed from third parties. The terms in this Agreement are offered by us alone and do not limit the rights and requirements in any such third party materials.
• You are solely responsible for ensuring that your systems meet the hardware, software and any other applicable system requirements for the Software as specified in the Documentation.
• You agree that we may verify that your use of the Software is in compliance with this Agreement and the Scope of Use. You will provide reasonable assistance, cooperation, and access to relevant information in the course of any verification. If you exceed your Scope of Use, we may invoice you for any past or ongoing excessive use, and you will pay the invoice promptly after receipt.

If you purchased the Offerings from a Reseller, then to the extent there is any conflict between this Agreement and the agreement entered between you and the respective Reseller, including any purchase order (“Reseller Agreement”), then, as between you and us, this Agreement shall prevail. Any rights granted to you in such Reseller Agreement which are not contained in, or consistent with, this Agreement, apply only in connection with the Reseller. In that case, you must seek redress or realization or enforcement of such rights solely with the Reseller and not us. The Reseller is not authorized to modify this Agreement or make any promises or commitments on our behalf, and we are not bound by any obligations to you other than as set forth in this Agreement. These additional terms shall apply to your use of the Offerings through a Reseller:

• Your Reseller may also be added as an Additional User, provided that your Reseller is permitted to use the Offerings solely on your behalf as necessary for such Reseller to provide you services.
• The fees and subscription number/type for the Offerings will be set forth in the Reseller Agreement between you and the Reseller.
• You and your Users’ access to the Offerings is subject to our receipt from such Reseller of the payment of the applicable fees paid by you to the Reseller. You hereby acknowledge that at any time, at our discretion, the billing of the fees for your use of the Offerings purchased through a Reseller may be assigned to us, such that you shall pay us directly the respective fees. We may suspend or terminate your rights to use the Offerings if we do not receive the corresponding payment from the Reseller.
• Instead of an Order with us, your order details (e.g., the Offerings, Subscription Term, and Scope of Use) will be as stated in the Order placed with us by the Reseller on your behalf, and the Reseller is responsible for the accuracy of any such Order as communicated to us.
• If you are entitled to a refund under this Agreement, then unless otherwise specified by us, we will refund any applicable fees to the Reseller and the Reseller will be solely responsible for refunding the appropriate amounts to you.

Free Offerings. We may offer, from time to time, part or all of the Offerings on a free, no-obligation basis (“Free Offerings”). Free Offerings are for trial purposes only, and the terms and conditions of the Free Offerings are set forth hereunder and as communicated to you within the Offerings or in an Order.
Free Offerings may not be combined or used in conjunction with any paid Offerings. You and/or your Users shall not (a) use, mix or combine a Free Offering with any paid Offering within the same organizational account or within your organization, (b) use, mix or combine a Free Offering with any paid Offerings within a User Account, or between/among User Accounts, (c) have any combination of one or more free User Accounts with any paid User Account; or (d) use results, outputs, tests, or data produced or generated by a Free Offering with any paid Offering or in any paid account. As a non-limiting example, you cannot use a free version of Katalon Studio in conjunction with, or use tests and other outputs generated using a free version of Katalon Studio within, a paid account or paid Offering (such as a paid version of Katalon Runtime Engine).

Pre-Released Offerings. We may offer, from time to time, certain products or services on our Offerings in Alpha or Beta versions, pre-released versions or otherwise still under development (the “Pre-Released Offerings”). We use our best endeavors to identify such Pre-Released Offerings as such. Pre-Released Offerings may be inoperable or incomplete, and may contain bugs, suffer disruptions and/or not operate as intended and designated, more than usual. We reserve the right to modify, cancel and/or limit any Pre-Released Offerings at any time and without liability or explanation to you.

Governing Terms of Free Offerings and Pre-Released Offerings. We grant you access and use of the Free Offerings and Pre-Released Offerings subject to this Agreement and within the Scope of Use, provided that notwithstanding anything in this Agreement or elsewhere to the contrary, in respect of Free Offerings and Pre-Released Offerings (a) such products or services are provided or licensed (as applicable) hereunder on as “As-Is”, “With All Faults”, “As Available” basis, with no warranties, express or implied, of any kind; (b) any indemnity undertaking by us in this Agreement shall not apply; and (c) IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF KATALON, ITS AFFILIATES OR ITS THIRD PARTY SERVICE PROVIDERS, UNDER, OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, EXCEED US$100. We make no promises that any Free Offerings and/or Pre-Released Offerings will be made available to you and/or generally available.

Changes to Terms. We reserve the right to modify, cancel and/or limit any Free Offerings and/or Pre-Released Offerings at any time and without liability or explanation to you. We may modify the terms and conditions in this Agreement related to Free Offerings and Pre-Released Offerings from time to time, with notice to you in accordance with the provision on Notices in the Customer Terms or by posting the modified terms on our website. Together with the notice, we will specify the effective date of the modifications. You must accept the modifications to continue using Free Offerings or Pre-Released Offerings. If you object to the modifications, your exclusive remedy is to cease using the Free Offerings or Pre-Released Offerings.

Welcome to the Katalon Offerings! Katalon, Inc. and/or its Affiliates (“Katalon”, “we”, “us” or “our”) provide the Offerings subject to the following conditions.

Please review these Customer Terms of Use (these “Terms”) carefully. These Terms are between you and the Katalon entity that owns or operate the Offering that you are using or accessing. “You” or “your” means, unless otherwise indicated, your employer or another entity you represent, as applicable. You hereby represent that (a) you have full legal authority to bind your employer or such entity (as applicable) to these Terms; and (b) after reading and understanding these Terms, you agree to these Terms on behalf of your employer or the respective entity (as applicable), and these Terms shall bind your employer or such entity (as the case may be). PLEASE NOTE THAT YOU ARE DEEMED AS AN AUTHORIZED REPRESENTATIVE OF YOUR EMPLOYER OR AN ENTITY (AS APPLICABLE): (I) IF YOU ARE USING YOUR EMPLOYER OR AN ENTITY’S EMAIL ADDRESS IN REGISTERING AN ACCOUNT TO USE THE OFFERINGS; OR (II) IF YOU ARE AN ADMIN (AS DEFINED BELOW).

Account. You must register for an account with us in order to place Orders or access and use the Offerings. When creating a User Account or when you are added into a User Account, you: (a) agree to provide us with accurate, complete, and current registration information for all Users; (b) acknowledge that it is your and each User’s responsibility to ensure that such User’s password remains confidential and secure; (c) agree that you are fully responsible for all activities that occur under User Accounts; and (d) undertake to promptly notify us in writing if you become aware of any unauthorized access or use of User Accounts and/or any breach of these Terms. We may assume that any communications we receive under User Accounts have been made by you. You will be solely responsible and liable for any losses, damages, liability and expenses incurred by us or a third party, due to any unauthorized usage of the User Account by either you or any other User or third party on your behalf.

Administration. The Offerings allow you to specify Users, including Admins. An Admin may have the ability to make Orders or enable features, products or services (which may incur fees); creating, de-provisioning, monitoring or modifying User Accounts, and setting User usage permissions or subscription renewal options; integrate or disable integration with Plugins and third party products or services; and managing Your Data by Users or others. You are responsible for whom you allow to become Admins and any actions they take, including as described above. You agree that our responsibilities do not extend to the internal management or administration of the Offerings to you.

Users. Only Users may access and use the Offerings. Some Offerings may allow you to designate different types of Users, in which case pricing and functionality may vary according to the type of User. You are responsible for the actions taken by your Users, and the compliance with these Terms by all Users, including what Users do with Your Data, and for all fees incurred by Users (or from adding Users). Any Offerings identified in an Order as being provided on per “user” basis has a specific natural person associated with each subscription, who must be identified in the User Account, and may not be changed in a manner to circumvent the number of Users permitted. A User associated with a “user” based subscription may access and use the applicable Offerings on any Internet browser and/or computer within your internal enterprise network, provided that only one User is assigned to a User Account and multiple individuals may not share the same User Account.

Access to Offerings. Subject to these Terms and during the applicable Subscription Term, you are granted a non-exclusive, non-sublicensable and non-transferable right for Users to access and use the Offerings for (a) your internal business purposes for your and your Affiliates’ benefits, and (b) the internal business purposes of your Customers as part of the services that you provide to them, as applicable.

Use by Your Affiliates, Contractors, and Customers. You are only permitted to add your Affiliates, Contractors, and Customers as Users (“Additional Users”) to access and use the Offerings, provided that:

• Use by each of your Additional Users are subject to these Terms, and you remain responsible for each of your Additional Users’ compliance with these Terms;
• Contractors are permitted to use the Offerings solely on your behalf as necessary to provide services to you; and
• Customers are permitted to use the Offerings as part of the services that you provide to them in respect to your products and services.

Ownership and General Restrictions. As between the parties, we exclusively own and reserves all right, title, and interest in and to the Offerings, the Documentation, and our Confidential Information. As between the parties, you exclusively own and reserve all right, title, and interest in and to your Confidential Information and Your Data, subject to our rights to process Your Data in accordance with these Terms. Except for the limited rights expressly granted above, we reserve all rights, title and interest in and to the Offerings, including all intellectual property rights therein. No rights are granted to you hereunder other than as expressly set forth above in these Terms. Without limiting the generality of the foregoing, except as otherwise expressly permitted in these Terms, you will not (a) use the Offerings for the benefit of any third party, or permit any third party to use the Offerings (other than as expressly permitted with respect to your Additional Users), (b) reproduce, modify, adapt or create derivative works of the Offerings, (c) reverse engineer, disassemble, decompile, translate or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to the Offerings, except to the extent expressly permitted by applicable law (and then only upon advance notice to us), (d) remove or obscure any proprietary or other notices on the Offerings, (e) attempt to gain unauthorized access to the Offerings, interfere with, or otherwise circumvent any security measures or mechanisms intended to limit your use within the Offerings, (f) use the Offerings for competitive analysis, product benchmark or to build competitive products; (g) publicly disseminate information regarding the performance of any products or services on the Offerings; (h) use the Offerings to transmit or store any malicious code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses; or (i) encourage or assist any third party to do any of the foregoing.

Fees. Unless otherwise set forth on an Order, you will be charged the applicable rates available at https://katalon.com/ or as otherwise made available on the Offerings. You agree to pay us the fees for the Offerings. Unless otherwise set forth in an applicable Order, payment shall be due within thirty (30) days of receipt of our invoice and shall be made in United States dollars, and invoices may be submitted through your Admin’s User Account or via email to the email address(es) you designate in your Admin’s User Account. Subject to any payment dispute (below), payment obligations are non-cancelable and all fees, once paid, are non-refundable. You agree (a) that any and all discounts, incentives and promotional pricings offered to you are conditioned upon your timely payments of all fees due hereunder; (b) that if you default on any payment, all unpaid fees for your Subscription Term shall be accelerated so that such unpaid fees are immediately due and payable; and (c) to pay a late charge of one and one-half percent (1.5%) per month (or part of a month), or the maximum lawful rate permitted by applicable law, whichever is less, for all amounts, not subject to a good faith dispute (below), and not paid when due. We may suspend the provision of the Offerings to any and all of your User Accounts until all fees due are paid in full. You are prohibited from creating new accounts until all fees due are paid in full.

Taxes. All fees are exclusive of Taxes. Amounts payable to us under these Terms are payable in full to us without deduction and are net of Taxes. You will pay all Taxes associated with the Offerings and these Terms, excluding any taxes based on our net income, property, or employees. We reserve the right to invoice for Taxes if required under the applicable taxing jurisdiction unless you provide us with an exemption certificate.

Increasing Usage Limits. You may add users, increase limits, or otherwise increase the Scope of Use of the Offerings by placing a new Order or modifying an existing Order, as permitted on the Offerings. Unless otherwise specified in the applicable Order, we will charge you for any increased use at our then-current rates, prorated for the remainder of the then-current Subscription Term.

Payment Disputes. You will notify us in writing within thirty (30) days of the date we bill you for any fees that you wish to dispute. Where you are disputing any fees, you must act reasonably and in good faith and will cooperate diligently with us to resolve the dispute. We will not charge you a late fee or suspend the provision of the Offerings for unpaid fees that are in dispute, unless you fail to cooperate diligently with us, or we determine the dispute is not reasonable or not brought in good faith by you.

Test Content. As between the parties, you retain all right, title and interest (including any and all intellectual property rights) in and to your Test Content and any modifications made thereto in the course of the operation of the Offering. You grant us and our Affiliates the right to copy, display, modify, store, use and process your Test Content to provide services and to enable you to use the Offerings in a manner that is consistent with these Terms. You are responsible for the quality and integrity of your Test Content. You are solely responsible for the accuracy, content and legality of all your Test Content. You represent and warrant that you have sufficient rights in your Test Content to grant the rights granted to us hereunder and that your Test Content does not infringe or violate the intellectual property, publicity, privacy or other rights of any third party. You agree not to upload to the Offerings (a) any patient, medical or other protected information regulated by HIPAA or any similar federal or state laws, rules or regulations or (b) any financial or accounting data or payment information, other than your credit card information for account payment processing of the fees, which is processed and stored by our third-payment payment service provider and not processed or stored by us.

Removals and Suspension. We have no obligation to monitor any content uploaded to the Offerings. Nonetheless, if we deem such action necessary based on your violation of these Terms or in response to takedown requests for violations of third party intellectual property rights, we may remove Your Data from the Offerings and/or suspend your access to the Offerings. We will use reasonable efforts to provide you with advance notice of removals and suspensions when practicable, but if we determine that your actions endanger the operation of the Offerings or other users, we may suspend your access or remove you’re your Data immediately without notice. We have no liability to you for removing or deleting you’re your Data from or suspending your access to any Offerings.

Non-Use and Nondisclosure. Each party shall treat as confidential all Confidential Information of the other party, shall not use such Confidential Information except to exercise its rights and perform its obligations under these Terms, and shall not disclose such Confidential Information to any employee or third party, except to those Users, employees, advisors or representatives of the recipient who are under a contractual or fiduciary duty of confidentiality similar in content to the provisions hereof and whom the recipient will remain responsible for hereunder (“Representatives”) and who are required to have access to such Confidential Information in order to perform the obligations under these Terms. Without limiting the foregoing, each of the parties shall use at least the same degree of care it uses to prevent the disclosure of its own confidential information of like importance, which care shall be no less than reasonable care, to prevent the disclosure of Confidential Information of the other party.

Exceptions. The receiving party may disclose Confidential Information of the disclosing party if so required pursuant to a regulation, law, subpoena, or court order (collectively, “Compelled Disclosures”), provided the receiving party gives the disclosing party notice of a Compelled Disclosure (to the extent legally permitted). The receiving party will provide reasonable cooperation to the disclosing party in connection with a Compelled Disclosure at the disclosing party’s sole expense.

Feedback. You may provide suggestions, feedback and other information to us regarding possible improvements in the operation, functionality or use of the Offerings (“Feedback”). We have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Offerings and related systems and technologies, including without limitation operating speed, memory usage, throughput, bandwidth, errors and error rates, user logins, feature usage, performance data, and other information reasonably necessary to confirm that you and your Users are complying with license usage restrictions (“Usage Data”). You hereby grants us the perpetual, irrevocable, sublicensable right to use, copy, modify, create derivative works of and otherwise fully exploit (a) Usage Data and the Feedback to improve the operation, functionality or use of our existing and future offerings and commercializing such offerings; (b) the Usage Data to publish aggregated statistics about product quality, provided that no data in any such publication can be used to specifically identify you or your Users; and (c) the Usage Data to confirm that you are complying with license usage restrictions.

Changes to these Terms. We may modify the terms and conditions of these Terms from time to time, with notice to you in accordance with the provision on Notices below or by posting the modified Terms on our website; provided however, any modifications to these Terms will take effect at the next renewal of your Subscription Term and will automatically apply as of the renewal date unless you elect not to renew. Notwithstanding the foregoing, in some cases (e.g., to address compliance with Laws, or as necessary for new features) we may specify that such modifications become effective during your then-current Subscription Term. If the effective date of such modifications is during your then-current Subscription Term and you object to the modifications, then (as your exclusive remedy) you may terminate your affected Orders upon notice to us, and we will refund to you any fees you have pre-paid for use of the affected Offering for the terminated portion of the applicable Subscription Term. To exercise this right, you must provide us with notice of your objection and termination within thirty (30) days of us providing notice of the modifications. For the avoidance of doubt, any Order is subject to the version of these Terms in effect at the time of the Order.

Term. These Terms will commence upon your acceptance of an Order, your creation or access to a User Account, or your download, installation, activation or use of the Offerings and will remain in effect until otherwise terminated as set forth below.

Termination. A party may terminate any Order if the other party commits any material breach of such Order (or the provisions of these Terms applicable to the particular Order) and does not remedy the material breach within thirty (30) days after the date that it receives notice of the breach. These Terms may be terminated by either party immediately upon written notice, in the event that: (a) the other party files a petition, in bankruptcy, seeking any reorganization, arrangement, composition, or similar relief under any law regarding insolvency or relief for debtors, or makes an assignment for the benefit of creditors; (b) a receiver, trustee, or similar officer is appointed for the business or property of such party; or (c) the other party adopts a resolution for discontinuance of its business or for dissolution. We may terminate these Terms or any Orders in the event you fail to make any payments of fees when such payments are due. Termination of an Order shall not be deemed a termination of these Terms. Termination of these Terms shall, however, terminate all outstanding Orders. Either party may also terminate these Terms upon no less than thirty (30) days’ prior written notice to the other party for any reason, if at such time there are no outstanding Orders then currently in effect.

Suspension of the Offerings. We may suspend use of the Offerings immediately upon notice to you for cause if we, in good faith, determines: (a) that you or your Users materially breach (or we, in good faith, believes that you or your Users have materially breached) any provision of these Terms, and such breach violates a third party right or materially impacts the performance of the Offerings or other users’ enjoyment of the Offerings; (b) there is an unusual and material spike or increase in your use of the Offerings and that such traffic or use is fraudulent or materially and negatively impacting the operating capability of any products or services on the Offerings; (c) that our provision of the products or services on the Offerings is prohibited by applicable law or regulation; (d) there is any use of the Offerings by you or your Users that threatens the security, integrity, or availability of the Offerings; or (e) that information in your User Account or User Accounts of your Users are untrue, inaccurate, incomplete or otherwise fraudulent. You remain responsible for all fees.

Subscription Auto-Renewal. To ensure that you will not experience any interruption or loss of services, your Offerings include an automatic renewal option by default, according to which, unless you disable the auto-renewal option or cancel your subscription prior to its expiration, the subscription will automatically renew upon the end of the then applicable Subscription Term for a period of like term. You will provide any notice of non-renewal through the means we designate, which may include account settings on the Offerings or contacting our support team. Cancelling your subscription means that you will not be charged for the next billing cycle, but you will not receive any refunds or credits for amounts that have already been charged. Unless specified in an applicable Order, all renewals (a) are subject to the applicable products or services continuing to be offered on the Offerings, (b) will be charged at the then-current prices for the applicable Offerings, (c) will exclude any discount or other promotions offered during the prior Subscription Term, and (d) are subject to any changes in usage policies, usage limits or other Scope of Use. You agree that we may bill your credit card or other payment method for renewals, additional users, overages to set limits or Scopes of Use, expenses, and unpaid fees, as applicable. Either party may elect to not renew an Order by giving the other party at least thirty (30) days’ written notice to terminate such Order before the beginning of the next Subscription Term for such Order, and such termination shall be effective at the end of the then current Subscription Term.

Effect of Termination. Upon any termination or expiration of these Terms or any applicable Order, we shall no longer provide the applicable Offerings to you, and you shall promptly cease and cause your Users to promptly cease using the applicable Offerings. Upon termination of these Terms, each party shall promptly return or destroy all Confidential Information of the other party in its possession, except that each party may keep a copy of the other party’s Confidential Information for archival purposes, or otherwise in accordance with their respective internal recordkeeping procedures, or in compliance with applicable Laws, and will not be required to delete or destroy any copies maintained in its normal-course back-up media. After termination of any Order, we will have no obligation to store and/or make available Your Data for the applicable Offerings, and we may delete the same. All rights and obligations of the parties which by their nature are reasonably intended to survive such termination or expiration will survive termination or expiration of these Terms and each Order.

Offering Warranty. We warrant that during the Subscription Term, the Offerings will conform, in all material respects, with the Documentation. Such warranty shall only apply if the Offerings have been utilized by you in accordance with the Order, the Documentation, and these Terms. For any breach of our representation and warranty, your exclusive remedies are those described in the “Termination” section.

Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, WE MAKE NO, AND DISCLAIMS ALL, WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WE DO NOT REPRESENT OR WARRANT THAT THE OFFERINGS WILL BE ERROR-FREE OR THAT THE OFFERINGS WILL MEET YOUR OR YOUR USERS’ REQUIREMENTS OR THAT ALL ERRORS IN THE OFFERINGS WILL BE CORRECTED, AND WE MAKE NO WARRANTIES AND DISCLAIM ALL WARRANTIES WITH RESPECT TO ANY THIRD PARTY COMPONENTS OR APPLICATIONS. THE WARRANTIES STATED IN THIS SECTION ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY US. Without limiting the foregoing, you agree that we shall have no liability for errors or omissions in the output of the Offerings, such outputs including, without limitation, the quality or accuracy of any screen displays or reports, in the transmission and reception of data, or in the processing of such data by the Offerings. You agree that any use or purchase of our products or services shall not be contingent on the delivery of any future functionality or features, or dependent on any oral or written comments we make regarding future functionality or features.

Our Indemnification. We will defend you, your Affiliates and their respective officers, directors, employees and agents (collectively, the “Customer Indemnitees”), against any claim, demand, suit or proceeding made or brought against any of the Customer Indemnitees by a third party alleging that the Offerings infringe or misappropriate such third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify the Customer Indemnitees from any damages (including reasonable attorney fees and costs) finally awarded against any of the Customer Indemnitees as a result of, or for amounts paid under a court-approved settlement of, a Claim Against Customer. If a Claim Against Customer is brought or is likely, in our sole opinion, to be brought, we will, at our option and expense (a) obtain the right for you to continue using the Offering; (b) replace or modify the affected Offering so that it becomes non-infringing; or (c) upon notice to you, terminate these Terms or your use of the affected Offerings, provided that in the case of subsection (c) we will promptly refund to you the prorated portion of any unearned pre-paid subscription fees paid hereunder for the affected Offerings. Our obligations in this section do not cover third party claims to the extent such claims arise from: (i) any products, services, technology, materials or data created or provided by a party other than us (including without limitation Your Data), (ii) any part of the Offerings made in whole or in part in accordance to your specifications, (iii) any modifications not made by us, (iv) any combination with other products, processes or materials not provided by us (where the alleged damages, costs or expenses arise from or relate to such combination), (v) where you continue the allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) your use of the Offerings not strictly in accordance with these Terms, the Scope of Use or any Documentation ((i) through (vi), the “Excluded Claims”).

Your Indemnification. You will defend us, our Affiliates and their respective officers, directors, employees and agents (collectively, the “Katalon Indemnitees”) against any claim, demand, suit or proceeding made or brought against any or all of the Katalon Indemnitees by a third party arising out of or attributable to the Excluded Claims, and will indemnify the Katalon Indemnitees from any damages, reasonable attorney fees and costs finally awarded against the Katalon Indemnitees as a result of, or for any amounts paid under a court-approved settlement of an Excluded Claim.

Indemnification Procedure. Each party’s obligation to indemnify the other party is conditioned on the party seeking indemnification: (a) promptly notifying the indemnifying party in writing of any claim, suit or proceeding for which indemnity is claimed, provided that failure to so notify will not remove the indemnifying Party’s obligation except to the extent it is prejudiced thereby, (b) allowing the indemnifying party to solely control the defense of any claim, suit or proceeding and all negotiations for settlement; provided that the indemnifying party shall not settle any claim that requires the indemnified party to admit fault without the indemnified party’s prior written consent (such consent not to be unreasonably withheld or delayed), and (c) giving the indemnifying party reasonable assistance in the defense and settlement of any claim, suit or proceeding for which indemnity is claimed.

Sole Remedy. The foregoing indemnity obligations state the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this section.

Limitation of Liability. EXCEPT FOR EACH PARTY’S VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS AND EACH PARTY’S INDEMNIFICATION OBLIGATIONS ABOVE, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY UNDER THESE TERMS OR OTHERWISE, REGARDLESS OF THE FORM OF CLAIM OR ACTION, IN AN AMOUNT THAT EXCEEDS THE FEES YOU HAVE PAID FOR THE OFFERINGS UNDER THE APPLICABLE ORDER IN THE PRECEDING 12 MONTHS. EXCEPT FOR EACH PARTY’S VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT WILL A PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES OR COSTS (INCLUDING WITHOUT LIMITATION, LOSS OF GOODWILL OR PROFIT, BUSINESS INTERRUPTION, LOSS OF BUSINESS) IN CONNECTION WITH THE OFFERINGS OR THESE TERMS, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS.

Assignment. Neither these Terms nor any rights or obligations under these Terms may be assigned or otherwise transferred by either party without the prior written consent of the other party; provided that, such prior written consent is not required for any assignment by either party to its Affiliates or to any successor of substantially all of its business or assets to which these Terms relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. These Terms shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.

Governing Law. These Terms shall be governed by the laws of the State of Georgia, USA, without regard to the conflicts of law provisions of any jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms. To the extent that any lawsuit is permitted under these Terms, the parties hereby expressly consent to the personal and exclusive jurisdiction and venue of the state and federal courts located in Fulton County, Georgia, USA (to the extent not addressed by arbitration below, if any).

Dispute Resolution. In the event of any dispute, claim, or controversy in connection with these Terms (collectively, “Disputes”), each party’s senior representatives will, in good faith, attempt to resolve the Dispute. If the parties are unable to resolve the Dispute within thirty (30) days or within such other time period as the parties may agree in writing, then the parties may commence binding arbitration under JAMS’ Comprehensive Arbitration Rules and Procedures. The parties will share equally the fees and expenses of the JAMS arbitrator. The arbitration will be conducted by a sole arbitrator mutually agreed to between the parties or, failing that, by JAMS under its then prevailing rules. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The arbitrator will have the authority to grant specific performance or any other equitable or legal remedy, including provisional remedies. Each party will be responsible for its own incurred expenses arising out of any dispute resolution procedure. Any arbitration proceedings will take place in Fulton County, Georgia, USA.

Injunctive Relief. Nothing contained in these Terms shall deny either party the right to seek immediate injunctive or other equitable relief from a court of competent jurisdiction: (a) in the context of a bona fide emergency or prospective irreparable harm to preserve the status quo pending resolution of a dispute between the parties or (b) where a party alleges or claims a violation of any agreement regarding intellectual property, confidential information or noninterference. Such an action may be filed and maintained notwithstanding any ongoing discussions between the parties or any ongoing arbitration proceeding.

Additional Customer Terms. Additional terms and conditions specific to certain products and services in the Offerings are set forth in the Addendum (the “Additional Customer Terms”). If you use any of the Offerings described in the Additional Customer Terms, the Additional Customer Terms will apply with respect to such Offerings, in addition to these Terms, and such Additional Customer Terms are incorporated herein by reference in their entirety.

Notice. All notices, consents and other communications hereunder shall be provided in writing and shall be delivered personally or by email or registered or certified mail (return receipt requested) to the parties at the addresses set forth on any Orders or in any User Account (or such other address as may have been furnished by or on behalf of such party by like notice); provided that, for any notices sent to us, a copy of the notice will be sent to legal@katalon.com. We may provide notice to you using your User Account or in-product notifications, or to your Admin contact information, including your Admin’s email address. You agree that any electronic communication will satisfy any applicable legal communication requirements, including that such communications be in writing. Communications sent by email shall be deemed delivered upon dispatch. Communications sent by registered or certified mail shall be deemed delivered upon receipt.

Publicity Rights. You agree that we may identify you as a customer and use your name, logo and a description of your use case on our website and in marketing and promotional materials, subject to your standard trademark usage guidelines that you provide to us. We will promptly stop doing so upon your request sent to legal@katalon.com.

Export Compliance. The Offerings may be subject to export laws and regulations of the United States and other jurisdictions. You represent that you and your officers, directors and other principals are not named on any U.S. government denied-party list. You shall not use or export the Offerings in violation of any U.S. export law or regulation.

U.S. Government End-Use Provisions. The following applies to all acquisitions of the Offerings and Documentation by or for the U.S. government or by any prime contractor or subcontractor under any contract, grant or other activity with the U.S. government. The Offerings and Documentation and services utilizing the Offerings and Documentation provided under these Terms are “commercial items” as that term is defined at 48 C.F.R. 2.101 consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and other applicable acquisition regulations and are provided to the U.S. Government only as a commercial item. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202, all U.S. Government users and licensees acquire the Offerings and its associated services and Documentation with only those rights and subject to the restrictions set forth in these Terms. Notwithstanding the foregoing, the Offerings and its associated services and Documentation may not be acquired by the U.S. government pursuant to a contract incorporating clauses prescribed by FAR Subpart 27.4 or DFARS Subpart 227.4.

Force Majeure. Nonperformance of either party, except for the making of payments, shall be excused to the extent that performance is rendered impossible by strike, fire, flood, earthquake, governmental acts or orders or restrictions, cyber-attacks, information security and data breaches caused by third parties, failure of cloud services, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of such party (collectively, “Force Majeure Events”). The party affected by a Force Majeure Event will take all reasonable actions to minimize the consequences of any such event.

Entire Agreement; Amendment. These Terms together with the Orders, and any attachments, schedules, exhibits and addenda (including without limitations, the Additional Customer Terms) referenced herein (the “Attachments”) constitute the entire agreement between the parties regarding the subject matter hereof. All prior or contemporaneous agreements, proposals, understandings, and communications between the parties regarding the subject matter hereof, whether oral or written, are superseded by and merged into these Terms. No modification or amendment to these Terms, nor any Attachment or Order, will be binding unless by an agreement in a writing signed by both parties that specifically references and clearly states the intention to amend these Terms, such Attachment or such Order, as applicable. Any terms and conditions set forth in an Order shall solely be applicable to such Order and shall not affect any other Orders between the parties. In the event of any conflict between these Terms and those of any Order or Attachment, these Terms will control (unless such Order or Attachment is intended to control), and the terms of an Order, an Attachment, and these Terms will prevail over any conflicting provision in any purchase order or any other instrument regardless of execution by the parties. You may not use a purchase order or other instrument not issued by us to modify or add to these Terms, and all such attempted modifications or additions to these Terms in any such purchase order or instrument shall be void and of no effect, even if accepted or signed by both parties. Any purchase orders that are accepted by us are accepted expressly subject to these Terms without regards to any additional or conflicting terms therein.

Other Miscellaneous Terms. The relationship between the parties to these Terms is and shall be that of independent contractors. It is expressly agreed that nothing in these terms shall be construed to create or imply a partnership, joint venture, agency relationship or contract of employment. There are no third party beneficiaries to these Terms. Any waiver of the provisions of these Terms or of a party’s rights or remedies under these Terms must be in writing referencing these Terms to be effective. Failure, neglect, or delay by a party to enforce the provisions of these Terms or its rights or remedies at any time shall not be deemed to be a waiver of such party’s rights under these Terms and shall not prejudice such party’s right to take subsequent action. A party’s waiver of the performance of any covenant or any breach is not to be construed as a waiver of any succeeding breach or of any other covenant. If any term, condition, or provision in these Terms is found to be invalid, unlawful or unenforceable to any extent, the invalid, unlawful or unenforceable term, condition or provision shall be severed from the remaining terms, conditions and provisions, which shall continue to be valid and enforceable to the fullest extent permitted by law. No action arising out of these Terms, regardless of form, may be brought by you more than one year after the date the cause of action has accrued. The language of these Terms, any Attachments and all Orders is English. All contract interpretations, notices and dispute resolutions shall be in English. Translations of any of these documents are not to be construed as official or original versions of the documents.

Certain capitalized terms are defined below, and others are defined contextually in these Terms.

“Account Profile” means any profile or registration information (including profile or information relating to your organization or an individual User) that you or a User provides in the User Account, which may include but not limited to, your organization’s or an individual User’s name, email address and other contact information, username and password, and subscription, Order and payment information.

“Admin” means a personal (who is a User) designated by you to administer any Offerings to Users on your behalf.

“Affiliate” means any entity that directly or indirectly controls or is controlled by, or is under common control with, the party specified. For purposes of this definition, “control” means direct or indirect ownership of more than fifty percent (50%) of the voting interests of the subject entity.

“Cloud Products” means our hosted or cloud-based services and solutions, including any client software we provide as part thereof.

“Confidential Information” means any material or information disclosed by either party to the other party either directly or indirectly, relating to these Terms, in writing, orally or by inspection of tangible objects (including without limitation material or information relating to such party’s research, development, know-how, products, product plans, services, customer, customer lists, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, marketing, finances, or other business information or trade secrets), which is designated as “Confidential,” “Proprietary” or some similar designation, or information the confidential or proprietary nature of which is reasonably apparent under the circumstances. Confidential Information shall not include information which (a) becomes a part of the public domain through no act or omission of recipient; (b) was in recipient’s lawful possession prior to the disclosure by discloser and had not been subject to limitations on disclosure or use, as shown by recipient’s files existing at the time of disclosure; (c) is independently developed by recipient’s employees or independent contractors who have not had access to the Confidential Information; or (d) is lawfully disclosed hereafter to recipient, without restriction, by a third party who did not acquire the information directly or indirectly from discloser.

“Consultants” means your representatives, consultants, contractors, agents or other third parties who use or access the Offerings solely on your behalf as necessary to provide services to you.

“Customer” means a customer for your testing services and the resulting outpoint and who has a separate subscription to the applicable Offerings that you are providing such customer support therewith.

“Documentation” means our standard published documentation for the Offerings, including any usage guides and policies, currently located here.

“Laws” means all applicable local, state, federal and international laws, regulations and conventions, including those related to data privacy and data transfer, international communications and the exportation of technical or personal data.

“Offerings” means the products and services made available by us on or through the Software or Cloud Products (including without limitations, the Trial Services and Pre-Released Services), as designated on an Order and within the Scope of Use.

“Order” means our applicable online order form(s), flows, in-product screens or other ordering document or process approved by us that specifies, as applicable, mutually agreed upon (a) Offerings you are ordering from us (either directly by you or indirectly through a Reseller in accordance to your Reseller Agreement), (b) Scope of Use, and (c) (for a paid Order) the amount or rate you will be charged, the billing and renewal terms, applicable currency, and form of payment.

“Reseller” means a reseller, distributor or partner authorized by us in writing to resell or offer Offerings to you, in the case where you purchase such Offerings from such authorized reseller, distributor or partner.

“Scope of Use” means your authorized scope of use of an applicable Offering in compliance with the applicable Documentation and as designated on an Order, which may include (as applicable): (a) Subscription Terms, (b) number and type of Users or organizations, (c) numbers of licenses, copies, instances, nodes, executions or parallel execution sessions, (d) usage metrics, usage limits, data retention period, or other scope of use parameters, or (e) entity, division, business unit, website, field of use or other restrictions or billable units.

“Software” means our commercially available downloadable software products, including mobile applications of such products. Your Order will specify the Software that you may use.

“Subscription Term” means your permitted subscription period for a subscription-based Offering designated on an Order and any renewal thereof.

“Taxes” means any applicable taxes, levies, duties, or other similar exactions imposed by a legal, governmental, or regulatory authority in any applicable jurisdiction, including, without limitation, sales, use, value-added, consumption, communications, or withholding taxes.

“Test Content” means test scripts, records and other test data you send to or create and store in the Offerings, including the testing project name and date, test execution results (log, image, video) and reports, and execution environment information.

“User Account” means an account that contains an Account Profile, established by you or a User to enable the User to use or access the Offerings.

“Users” means the specific natural persons that are your employees or Additional Users, whom you permit and invite to use the applicable Offerings for your benefit or as otherwise permitted for such Additional Users, and for whom you have paid the required fees (as applicable).

“Your Data” means your Test Content, Account Profiles, and any data, content, code, video, images or other materials of any type that you (including any of your Users) submit, upload or transmit to, or otherwise make available on, he Offerings.

If you use any of the Offerings below, these Additional Customer Terms (“Additional Terms”) will apply with respect to such Offerings, in addition to the Customer Terms of Use (the “Customer Terms”, the Customer Terms together with the Additional Terms shall hereafter be referred to as this “Agreement”). All defined terms used herein but not otherwise defined, shall have the meanings given to them in the Customer Terms.

If you purchase or otherwise use Software as part of the Offerings, you agree to comply with these additional restrictions:

• Upon termination of any Order for the Software for any reason, you will promptly at our option either return or destroy all copies of the Software and any related Documentation in your possession or control.
• Unless otherwise specified in an Order, for each Software license that you purchase, you may install one (1) production instance of the Software on systems owned or operated by you or one of your Users.
• Use of the Software is limited to use in object-code form only. With respect to your use of the Software for Customers as permitted in the Agreement, you may not provide access or use of your copies of the Software to the Customers or include the Software as part of a product, service or other offering you provide to the Customers. In addition, you must verify that each Customer has its own copy of the Software.
• Except for the limited rights expressly granted in this Agreement, we reserve all rights, title and interest in and to the Software, including all related intellectual property rights. No rights are granted to you hereunder other than as expressly set forth above in this Agreement. Without limiting the generality of the foregoing, you may not (a) distribute outside your organization, sublicense, copy, modify, or publicly display the Software, (b) use on behalf of any third party, or permit any third party to use, the Software (except for the limited use for Additional Users described in the Customer Terms), (c) decompile or reverse engineer the Software, (d) remove any proprietary rights notices on the Software, or (e) attempt to gain unauthorized access to the Software, interfere with, or otherwise circumvent any security measures or mechanisms to limit your use within the Software. If you believes you are entitled to reverse engineer the Software because of rights that may be granted as a matter of local law, such as the Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs (as amended), then (i) you shall first request the technical information from us, (ii) this technical information may be used only for the purposes of ensuring interoperability and compatibility, and (iii) the technical information will be considered our Confidential Information and treated as such according to this Agreement.
• You acknowledge that the Software may include open source and freeware software and materials licensed from third parties (“Third Party Components”) and that such third parties may be third party beneficiaries to this Agreement with the ability to directly enforce the provisions pertaining to their Third Party Components. You shall comply with the additional license terms, restrictions and conditions (including notices) pertaining to the Third Party Components or which we otherwise makes available to you (“Third Party Terms”). The Third Party Terms may have additional rights and requirements which apply to the Third Party Components and the terms in this Agreement are offered by us alone and do not limit the rights that may be granted in those Third Party Terms. However, you shall notify us before attempting to modify any Third Party Components, and our support, warranty and indemnification obligations (if any) do not apply where Third Party Components has been modified.
• You are solely responsible for ensuring that your systems meet the hardware, software and any other applicable system requirements for the Software as specified in the Documentation. We will have no obligations or responsibility under this Agreement for issues caused by your use of any third party hardware or software not provided by us.
• At our request, you agree to provide a signed certification that you are using all Software pursuant to the terms of this Agreement, including the Scope of Use. You agree to allow us, or our authorized agent, to audit your use of the Software (including that of your Users). We will provide you with at least ten (10) days advance notice prior to the audit, and the audit will be conducted during normal business hours. We will bear all out-of-pocket costs that we incur for the audit, unless the audit reveals that you have exceeded the Scope of Use. You will provide reasonable assistance, cooperation, and access to relevant information in the course of any audit at your own cost. If you exceed your Scope of Use, we may invoice you for any past or ongoing excessive use, and you will pay the invoice promptly after receipt. This remedy is without prejudice to any other remedies available to us at law or equity or under this Agreement. To the extent we are obligated to do so, we may share audit results with certain of our third party licensors or assign the audit rights specified herein to such licensors.
• Software identified in an Order as being provided on a “Floating License” basis may be installed and used on any computer within your internal enterprise network. Each Floating License subscription is assigned to one parallel usage session and shared across multiple User Accounts up to a maximum of three User Accounts at a time. Under a Floating License, you may use the applicable Software for the number of concurrent Users equal to the number of Floating License subscriptions purchased.
• Software identified in an Order as being provided on a “Node-Locked License” basis means the applicable Software is tied to one specific Machine. This license applies for physical or virtual Machines with fixed hardware specifications in each execution session. As used herein, a “Machine” means a single computer operated by you on which you may run the Software.
• By default, the Software will operate with online access (including for activation, support and updates). If you operate an instance of the Software offline (with no online access for activation, support or updates) on a Machine within your enterprise environment (“Offline Mode”), then the following terms apply:
  For Node-Locked Licenses. If you purchase a subscription to the Software under Node-Locked Licenses with Offline Mode, then any User may convert the User’s subscription access to Offline Mode. The User will submit into the subscription manager portion of the User Account the Machine ID of the Machine on which you will install the Software and obtain a license key from us in order to activate your copy of the Software on that Machine. Each instance of the Software in Offline Mode will count as a User’s subscription as part of the subscriptions for which you have paid. The Offline Mode for the applicable Software instance will expire 60 days from the date the User’s subscription is first put into Offline Mode (or the end of the Subscription Term, if that happens earlier).
  For Floating Licenses. If you purchase and deploy Floating Licenses for the applicable Software with Offline Mode, you must download and install the Katalon License Server to manage and track subscriptions. You will indicate to us the number of parallel usage sessions that will be conducted in Offline Mode. In such case, subject to the terms and conditions of this Agreement, we grant you a non-exclusive, nontransferable, non-sublicensable license to use the Katalon License Server solely as necessary to manage and track the subscriptions of the Software, as applicable. You will permit us to remotely access the Katalon License Server twice per year or provide us with a server-generated report from the Katalon License Server in the format specified by us, in each case so that we can verify usage is within the purchased subscription.

If you purchased the Offerings from a Reseller, then to the extent there is any conflict between this Agreement and the agreement entered between you and the respective Reseller, including any purchase order (“Reseller Agreement”), then, as between you and us, this Agreement shall prevail. Any rights granted to you in such Reseller Agreement which are not contained in, or consistent with, this Agreement, apply only in connection with the Reseller. In that case, you must seek redress or realization or enforcement of such rights solely with the Reseller and not us. The Reseller is not authorized to modify this Agreement or make any promises or commitments on our behalf, and we are not bound by any obligations to you other than as set forth in this Agreement. These additional terms shall apply to your use of the Offerings through a Reseller:

• Your Reseller may also be added as an Additional User, provided that your Reseller is permitted to use the Offerings solely on your behalf as necessary for such Reseller to provide you services.
• The fees and subscription number/type for the Offerings will be set forth in the Reseller Agreement between you and the Reseller.
• You and your Users’ access to the Offerings is subject to our receipt from such Reseller of the payment of the applicable fees paid by you to the Reseller. You hereby acknowledge that at any time, at our discretion, the billing of the fees for your use of the Offerings purchased through a Reseller may be assigned to us, such that you shall pay us directly the respective fees. We may suspend or terminate your rights to use the Offerings if we do not receive the corresponding payment from the Reseller.
• Instead of an Order with us, your order details (e.g., the Offerings, Subscription Term, and Scope of Use) will be as stated in the Order placed with us by the Reseller on your behalf, and the Reseller is responsible for the accuracy of any such Order as communicated to us.
• If you are entitled to a refund under this Agreement, then unless otherwise specified by us, we will refund any applicable fees to the Reseller and the Reseller will be solely responsible for refunding the appropriate amounts to you.

We may offer, from time to time, part or all of our products and services on the Offerings on a free, no-obligation trial version (“Trial Services”). The term of the Trial Services shall be as communicated to you within the Offerings or in an Order, unless terminated earlier by either you or us, for any reason or for no reason. We reserve the right to modify, cancel and/or limit any Trial Services at any time and without liability or explanation to you.

Trial Services of Katalon Studio. Trial Services for Katalon Studio that are not otherwise restricted by usage limit, are limited to one user for individual use only and not on behalf of any organization, and “you” as used in this Agreement for such Trial Services, means you as an individual natural person.

Pre-Released Services. We may offer, from time to time, certain products or services on our Offerings in an Alpha or Beta versions or otherwise still under development (the “Pre-Released Services”). We use our best endeavors to identify such Pre-Released Services as such. Pre-Released Services may be inoperable or incomplete, and may contain bugs, suffer disruptions and/or not operate as intended and designated, more than usual. We reserve the right to modify, cancel and/or limit any Pre-Released Services at any time and without liability or explanation to you.

Governing Terms of Trial Services and Pre-Released Services. We grant you access and use of the Trial Services and Pre-Released Services subject to this Agreement and within the Scope of Use, provided that notwithstanding anything in this Agreement or elsewhere to the contrary, in respect of Trial Services and Pre-Released Services (a) such services are provided or licensed (as applicable) hereunder on as “As-Is”, “With All Faults”, “As Available” basis, with no warranties, express or implied, of any kind; (b) any indemnity undertaking by us in this Agreement shall not apply; and (c) IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF KATALON, ITS AFFILIATES OR ITS THIRD PARTY SERVICE PROVIDERS, UNDER, OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, EXCEED US$100. We make no promises that any Trial Services and/or Pre-Released Services will be made available to you and/or generally available.

Changes to Terms. We may modify the terms and conditions in this Agreement related to Trial Services and Pre-Released Services from time to time, with notice to you in accordance with the provision on Notices in the Customer Terms or by posting the modified terms on our website. Together with the notice, we will specify the effective date of the modifications. You must accept the modifications to continue using Trial Services or Pre-Released Services. If you object to the modifications, your exclusive remedy is to cease using the Trial Services or Pre-Released Services.

Certain Plugins maybe be included with the Offerings or available on Katalon Store. You must activate any eligible Plugins that you want to use on the Offerings. In addition to this Agreement, if you use Plugins, you are also subject to the Katalon Store and Plugin Terms, which are incorporated herein by reference in their entirety.

Welcome to the Katalon Offerings! Katalon, Inc. and/or its Affiliates (“Katalon”, “we”, “us” or “our”) provide the Offerings subject to the following conditions.

Please review these Customer Terms of Use (these “Terms”) carefully. These Terms are between you and the Katalon entity that owns or operate the Offering that you are using or accessing. “You” or “your” means, unless otherwise indicated, your employer or another entity you represent, as applicable. You hereby represent that (a) you have full legal authority to bind your employer or such entity (as applicable) to these Terms; and (b) after reading and understanding these Terms, you agree to these Terms on behalf of your employer or the respective entity (as applicable), and these Terms shall bind your employer or such entity (as the case may be). PLEASE NOTE THAT YOU ARE DEEMED AS AN AUTHORIZED REPRESENTATIVE OF YOUR EMPLOYER OR AN ENTITY (AS APPLICABLE): (I) IF YOU ARE USING YOUR EMPLOYER OR AN ENTITY’S EMAIL ADDRESS IN REGISTERING AN ACCOUNT TO USE THE OFFERINGS; OR (II) IF YOU ARE AN ADMIN (AS DEFINED BELOW).

If you have a separate written agreement with us for your use of the Offerings, these Terms will not apply to you, unless that written agreement does not cover a particular product or service, in which case, these Terms apply solely to your use of that particular product or service.

A glossary of defined terms is included at the end of these Terms.

Account. You must register for an account with us in order to place Orders or access and use the Offerings. When creating a User Account or when you are added into a User Account, you: (a) agree to provide us with accurate, complete, and current registration information for all Users; (b) acknowledge that it is your and each User’s responsibility to ensure that such User’s password remains confidential and secure; (c) agree that you are fully responsible for all activities that occur under User Accounts; and (d) undertake to promptly notify us in writing if you become aware of any unauthorized access or use of User Accounts and/or any breach of these Terms. We may assume that any communications we receive under User Accounts have been made by you. You will be solely responsible and liable for any losses, damages, liability and expenses incurred by us or a third party, due to any unauthorized usage of the User Account by either you or any other User or third party on your behalf.

Administration. The Offerings allow you to specify Users, including Admins. An Admin may have the ability to make Orders or enable features, products or services (which may incur fees); creating, de-provisioning, monitoring or modifying User Accounts, and setting User usage permissions or subscription renewal options; integrate or disable integration with Plugins and third-party products or services; and managing Your Data by Users or others. You are responsible for whom you allow to become Admins and any actions they take, including as described above. You agree that our responsibilities do not extend to the internal management or administration of the Offerings to you.

Users. Only Users may access and use the Offerings. Some Offerings may allow you to designate different types of Users, in which case pricing and functionality may vary according to the type of User. You are responsible for the actions taken by your Users, and the compliance with these Terms by all Users, including what Users do with Your Data, and for all fees incurred by Users (or from adding Users). Any Offerings identified in an Order as being provided on per “user” basis has a specific natural person associated with each subscription, who must be identified in the User Account, and may not be changed in a manner to circumvent the number of Users permitted. A User associated with a “user” based subscription may access and use the applicable Offerings on any Internet browser and/or computer within your internal enterprise network, provided that only one User is assigned to a User Account and multiple individuals may not share the same User Account.

Access to Offerings. Subject to these Terms and during the applicable Subscription Term, you are granted a non-exclusive, non-sublicensable and non-transferable right for Users to access and use the Offerings for (a) your internal business purposes for your and your Affiliates’ benefits, and (b) the internal business purposes of your Customers as part of the services that you provide to them, as applicable.

Use by Your Affiliates, Contractors, and Customers. You are only permitted to add your Affiliates, Contractors, and Customers as Users (“Additional Users”) to access and use the Offerings, provided that:

• Use by each of your Additional Users are subject to these Terms, and you remain responsible for each of your Additional Users’ compliance with these Terms;
• Contractors are permitted to use the Offerings solely on your behalf as necessary to provide services to you; and
• Customers are permitted to use the Offerings as part of the services that you provide to them in respect to your products and services.

Ownership and General Restrictions. As between the parties, we exclusively own and reserves all right, title, and interest in and to the Offerings, the Documentation, and our Confidential Information. As between the parties, you exclusively own and reserve all right, title, and interest in and to your Confidential Information and Your Data, subject to our rights to process Your Data in accordance with these Terms. Except for the limited rights expressly granted above, we reserve all rights, title and interest in and to the Offerings, including all intellectual property rights therein. No rights are granted to you hereunder other than as expressly set forth above in these Terms. Without limiting the generality of the foregoing, except as otherwise expressly permitted in these Terms, you will not (a) use the Offerings for the benefit of any third party, or permit any third party to use the Offerings (other than as expressly permitted with respect to your Additional Users), (b) reproduce, modify, adapt or create derivative works of the Offerings, (c) reverse engineer, disassemble, decompile, translate or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to the Offerings, except to the extent expressly permitted by applicable law (and then only upon advance notice to us), (d) remove or obscure any proprietary or other notices on the Offerings, (e) attempt to gain unauthorized access to the Offerings, interfere with, or otherwise circumvent any security measures or mechanisms intended to limit your use within the Offerings, (f) use the Offerings for competitive analysis, product benchmark or to build competitive products; (g) publicly disseminate information regarding the performance of any products or services on the Offerings; (h) use the Offerings to transmit or store any malicious code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses; or (i) encourage or assist any third party to do any of the foregoing.

Fees. Unless otherwise set forth on an Order, you will be charged the applicable rates available at https://www.katalon.com/pricing or as otherwise made available on the Offerings. You agree to pay us the fees for the Offerings. Unless otherwise set forth in an applicable Order, payment shall be due within thirty (30) days of receipt of our invoice and shall be made in United States dollars, and invoices may be submitted through your Admin’s User Account or via email to the email address(es) you designate in your Admin’s User Account. Subject to any payment dispute (below), payment obligations are non-cancelable and all fees, once paid, are non-refundable. You agree (a) that any and all discounts, incentives and promotional pricings offered to you are conditioned upon your timely payments of all fees due hereunder; (b) that if you default on any payment, all unpaid fees for your Subscription Term shall be accelerated so that such unpaid fees are immediately due and payable; and (c) to pay a late charge of one and one-half percent (1.5%) per month (or part of a month), or the maximum lawful rate permitted by applicable law, whichever is less, for all amounts, not subject to a good faith dispute (below), and not paid when due. We may suspend the provision of the Offerings to any and all of your User Accounts until all fees due are paid in full. You are prohibited from creating new accounts until all fees due are paid in full.

Taxes. All fees are exclusive of Taxes. You will pay all Taxes associated with these Terms, excluding any taxes based on our net income, property, or employees. If you are required by applicable law to withhold any Taxes from payments owed to us, you will make such Taxes payment on our behalf by deducting them from the payment then due to us and remitting such Taxes to the proper authorities on a timely basis, and the payments provided for under these Terms will be adjusted upwards appropriately so that we actually receive the full amount of the fees set forth in the applicable Order. You will reduce or eliminate such withheld Taxes upon receipt of the appropriate tax certificate or document provided by us. You will provide us with proof of payment of any withheld Taxes to the appropriate authority. You agree to cooperate fully, to the extent reasonably requested by us, to furnish all information and assistance, and to take all reasonable and appropriate steps, to minimize any withholding Taxes required to be paid. Taxes will be shown as a separate line item on an invoice.

Increasing Usage Limits. You may add users, increase limits, or otherwise increase the Scope of Use of the Offerings by placing a new Order or modifying an existing Order, as permitted on the Offerings. Unless otherwise specified in the applicable Order, we will charge you for any increased use at our then-current rates, prorated for the remainder of the then-current Subscription Term.

Payment Disputes. You will notify us in writing within thirty (30) days of the date we bill you for any fees that you wish to dispute. Where you are disputing any fees, you must act reasonably and in good faith and will cooperate diligently with us to resolve the dispute. We will not charge you a late fee or suspend the provision of the Offerings for unpaid fees that are in dispute, unless you fail to cooperate diligently with us, or we determine the dispute is not reasonable or not brought in good faith by you.

Test Content. As between the parties, you retain all right, title and interest (including any and all intellectual property rights) in and to your Test Content and any modifications made thereto in the course of the operation of the Offering. You grant us and our Affiliates the right to copy, display, modify, store, use and process your Test Content to provide services and to enable you to use the Offerings in a manner that is consistent with these Terms. You are responsible for the quality and integrity of your Test Content. You are solely responsible for the accuracy, content and legality of all your Test Content. You represent and warrant that you have sufficient rights in your Test Content to grant the rights granted to us hereunder and that your Test Content does not infringe or violate the intellectual property, publicity, privacy or other rights of any third party. You agree not to upload to the Offerings (a) any patient, medical or other protected information regulated by HIPAA or any similar federal or state laws, rules or regulations or (b) any financial or accounting data or payment information, other than your credit card information for account payment processing of the fees, which is processed and stored by our third-payment payment service provider and not processed or stored by us.

Removals and Suspension. We have no obligation to monitor any content uploaded to the Offerings. Nonetheless, if we deem such action necessary based on your violation of these Terms or in response to takedown requests for violations of third-party intellectual property rights, we may remove Your Data from the Offerings and/or suspend your access to the Offerings. We will use reasonable efforts to provide you with advance notice of removals and suspensions when practicable, but if we determine that your actions endanger the operation of the Offerings or other users, we may suspend your access or remove you’re your Data immediately without notice. We have no liability to you for removing or deleting you’re your Data from or suspending your access to any Offerings.

Non-Use and Nondisclosure. Each party shall treat as confidential all Confidential Information of the other party, shall not use such Confidential Information except to exercise its rights and perform its obligations under these Terms, and shall not disclose such Confidential Information to any employee or third party, except to those Users, employees, advisors or representatives of the recipient who are under a contractual or fiduciary duty of confidentiality similar in content to the provisions hereof and whom the recipient will remain responsible for hereunder (“Representatives”) and who are required to have access to such Confidential Information in order to perform the obligations under these Terms. Without limiting the foregoing, each of the parties shall use at least the same degree of care it uses to prevent the disclosure of its own confidential information of like importance, which care shall be no less than reasonable care, to prevent the disclosure of Confidential Information of the other party.

Exceptions. The receiving party may disclose Confidential Information of the disclosing party if so required pursuant to a regulation, law, subpoena, or court order (collectively, “Compelled Disclosures”), provided the receiving party gives the disclosing party notice of a Compelled Disclosure (to the extent legally permitted). The receiving party will provide reasonable cooperation to the disclosing party in connection with a Compelled Disclosure at the disclosing party’s sole expense.

Feedback. You may provide suggestions, feedback and other information to us regarding possible improvements in the operation, functionality or use of the Offerings (“Feedback”). We have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Offerings and related systems and technologies, including without limitation operating speed, memory usage, throughput, bandwidth, errors and error rates, user logins, feature usage, performance data, and other information reasonably necessary to confirm that you and your Users are complying with license usage restrictions (“Usage Data”). You hereby grants us the perpetual, irrevocable, sublicensable right to use, copy, modify, create derivative works of and otherwise fully exploit (a) Usage Data and the Feedback to improve the operation, functionality or use of our existing and future offerings and commercializing such offerings; (b) the Usage Data to publish aggregated statistics about product quality, provided that no data in any such publication can be used to specifically identify you or your Users; and (c) the Usage Data to confirm that you are complying with license usage restrictions.

Changes to these Terms. We may modify the terms and conditions of these Terms from time to time, with notice to you in accordance with the provision on Notices below or by posting the modified Terms on our website; provided however, any modifications to these Terms will take effect at the next renewal of your Subscription Term and will automatically apply as of the renewal date unless you elect not to renew. Notwithstanding the foregoing, in some cases (e.g., to address compliance with Laws, or as necessary for new features) we may specify that such modifications become effective during your then-current Subscription Term. If the effective date of such modifications is during your then-current Subscription Term and you object to the modifications, then (as your exclusive remedy) you may terminate your affected Orders upon notice to us, and we will refund to you any fees you have pre-paid for use of the affected Offering for the terminated portion of the applicable Subscription Term. To exercise this right, you must provide us with notice of your objection and termination within thirty (30) days of us providing notice of the modifications. For the avoidance of doubt, any Order is subject to the version of these Terms in effect at the time of the Order.

Term. These Terms will commence upon your acceptance of an Order, your creation or access to a User Account, or your download, installation, activation or use of the Offerings and will remain in effect until otherwise terminated as set forth below.

Termination. A party may terminate any Order if the other party commits any material breach of such Order (or the provisions of these Terms applicable to the particular Order) and does not remedy the material breach within thirty (30) days after the date that it receives notice of the breach. These Terms may be terminated by either party immediately upon written notice, in the event that: (a) the other party files a petition, in bankruptcy, seeking any reorganization, arrangement, composition, or similar relief under any law regarding insolvency or relief for debtors, or makes an assignment for the benefit of creditors; (b) a receiver, trustee, or similar officer is appointed for the business or property of such party; or (c) the other party adopts a resolution for discontinuance of its business or for dissolution. We may terminate these Terms or any Orders in the event you fail to make any payments of fees when such payments are due. Termination of an Order shall not be deemed a termination of these Terms. Termination of these Terms shall, however, terminate all outstanding Orders. Either party may also terminate these Terms upon no less than thirty (30) days’ prior written notice to the other party for any reason, if at such time there are no outstanding Orders then currently in effect.

Suspension of the Offerings. We may suspend use of the Offerings immediately upon notice to you for cause if we, in good faith, determines: (a) that you or your Users materially breach (or we, in good faith, believes that you or your Users have materially breached) any provision of these Terms, and such breach violates a third party right or materially impacts the performance of the Offerings or other users’ enjoyment of the Offerings; (b) there is an unusual and material spike or increase in your use of the Offerings and that such traffic or use is fraudulent or materially and negatively impacting the operating capability of any products or services on the Offerings; (c) that our provision of the products or services on the Offerings is prohibited by applicable law or regulation; (d) there is any use of the Offerings by you or your Users that threatens the security, integrity, or availability of the Offerings; or (e) that information in your User Account or User Accounts of your Users are untrue, inaccurate, incomplete or otherwise fraudulent. You remain responsible for all fees.

Subscription Auto-Renewal. To ensure that you will not experience any interruption or loss of services, your Offerings include an automatic renewal option by default, according to which, unless you disable the auto-renewal option or cancel your subscription prior to its expiration, the subscription will automatically renew upon the end of the then applicable Subscription Term for a period of like term. You will provide any notice of non-renewal through the means we designate, which may include account settings on the Offerings or contacting our support team. Cancelling your subscription means that you will not be charged for the next billing cycle, but you will not receive any refunds or credits for amounts that have already been charged. Unless specified in an applicable Order, all renewals (a) are subject to the applicable products or services continuing to be offered on the Offerings, (b) will be charged at the then-current prices for the applicable Offerings, (c) will exclude any discount or other promotions offered during the prior Subscription Term, and (d) are subject to any changes in usage policies, usage limits or other Scope of Use. You agree that we may bill your credit card or other payment method for renewals, additional users, overages to set limits or Scopes of Use, expenses, and unpaid fees, as applicable. Either party may elect to not renew an Order by giving the other party at least thirty (30) days’ written notice to terminate such Order before the beginning of the next Subscription Term for such Order, and such termination shall be effective at the end of the then current Subscription Term.

Effect of Termination. Upon any termination or expiration of these Terms or any applicable Order, we shall no longer provide the applicable Offerings to you, and you shall promptly cease and cause your Users to promptly cease using the applicable Offerings. Upon termination of these Terms, each party shall promptly return or destroy all Confidential Information of the other party in its possession, except that each party may keep a copy of the other party’s Confidential Information for archival purposes, or otherwise in accordance with their respective internal recordkeeping procedures, or in compliance with applicable Laws, and will not be required to delete or destroy any copies maintained in its normal-course back-up media. After termination of any Order, we will have no obligation to store and/or make available Your Data for the applicable Offerings, and we may delete the same. All rights and obligations of the parties which by their nature are reasonably intended to survive such termination or expiration will survive termination or expiration of these Terms and each Order.

Offering Warranty. We warrant that during the Subscription Term, the Offerings will conform, in all material respects, with the Documentation. Such warranty shall only apply if the Offerings have been utilized by you in accordance with the Order, the Documentation, and these Terms. For any breach of our representation and warranty, your exclusive remedies are those described in the “Termination” section.

Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, WE MAKE NO, AND DISCLAIMS ALL, WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WE DO NOT REPRESENT OR WARRANT THAT THE OFFERINGS WILL BE ERROR-FREE OR THAT THE OFFERINGS WILL MEET YOUR OR YOUR USERS’ REQUIREMENTS OR THAT ALL ERRORS IN THE OFFERINGS WILL BE CORRECTED, AND WE MAKE NO WARRANTIES AND DISCLAIM ALL WARRANTIES WITH RESPECT TO ANY THIRD-PARTY COMPONENTS OR APPLICATIONS. THE WARRANTIES STATED IN THIS SECTION ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY US. Without limiting the foregoing, you agree that we shall have no liability for errors or omissions in the output of the Offerings, such outputs including, without limitation, the quality or accuracy of any screen displays or reports, in the transmission and reception of data, or in the processing of such data by the Offerings. You agree that any use or purchase of our products or services shall not be contingent on the delivery of any future functionality or features, or dependent on any oral or written comments we make regarding future functionality or features.

Our Indemnification. We will defend you, your Affiliates and their respective officers, directors, employees and agents (collectively, the “Customer Indemnitees”), against any claim, demand, suit or proceeding made or brought against any of the Customer Indemnitees by a third party alleging that the Offerings infringe or misappropriate such third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify the Customer Indemnitees from any damages (including reasonable attorney fees and costs) finally awarded against any of the Customer Indemnitees as a result of, or for amounts paid under a court-approved settlement of, a Claim Against Customer. If a Claim Against Customer is brought or is likely, in our sole opinion, to be brought, we will, at our option and expense (a) obtain the right for you to continue using the Offering; (b) replace or modify the affected Offering so that it becomes non-infringing; or (c) upon notice to you, terminate these Terms or your use of the affected Offerings, provided that in the case of subsection (c) we will promptly refund to you the prorated portion of any unearned pre-paid subscription fees paid hereunder for the affected Offerings. Our obligations in this section do not cover third party claims to the extent such claims arise from: (i) any products, services, technology, materials or data created or provided by a party other than us (including without limitation Your Data), (ii) any part of the Offerings made in whole or in part in accordance to your specifications, (iii) any modifications not made by us, (iv) any combination with other products, processes or materials not provided by us (where the alleged damages, costs or expenses arise from or relate to such combination), (v) where you continue the allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) your use of the Offerings not strictly in accordance with these Terms, the Scope of Use or any Documentation ((i) through (vi), the “Excluded Claims”).

Your Indemnification. You will defend us, our Affiliates and their respective officers, directors, employees and agents (collectively, the “Katalon Indemnitees”) against any claim, demand, suit or proceeding made or brought against any or all of the Katalon Indemnitees by a third party arising out of or attributable to the Excluded Claims, and will indemnify the Katalon Indemnitees from any damages, reasonable attorney fees and costs finally awarded against the Katalon Indemnitees as a result of, or for any amounts paid under a court-approved settlement of an Excluded Claim.

Indemnification Procedure. Each party’s obligation to indemnify the other party is conditioned on the party seeking indemnification: (a) promptly notifying the indemnifying party in writing of any claim, suit or proceeding for which indemnity is claimed, provided that failure to so notify will not remove the indemnifying Party’s obligation except to the extent it is prejudiced thereby, (b) allowing the indemnifying party to solely control the defense of any claim, suit or proceeding and all negotiations for settlement; provided that the indemnifying party shall not settle any claim that requires the indemnified party to admit fault without the indemnified party’s prior written consent (such consent not to be unreasonably withheld or delayed), and (c) giving the indemnifying party reasonable assistance in the defense and settlement of any claim, suit or proceeding for which indemnity is claimed.

Sole Remedy. The foregoing indemnity obligations state the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this section.

Limitation of Liability. EXCEPT FOR EACH PARTY’S VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS AND EACH PARTY’S INDEMNIFICATION OBLIGATIONS ABOVE, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY UNDER THESE TERMS OR OTHERWISE, REGARDLESS OF THE FORM OF CLAIM OR ACTION, IN AN AMOUNT THAT EXCEEDS THE FEES YOU HAVE PAID FOR THE OFFERINGS UNDER THE APPLICABLE ORDER IN THE PRECEDING 12 MONTHS. EXCEPT FOR EACH PARTY’S VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT WILL A PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES OR COSTS (INCLUDING WITHOUT LIMITATION, LOSS OF GOODWILL OR PROFIT, BUSINESS INTERRUPTION, LOSS OF BUSINESS) IN CONNECTION WITH THE OFFERINGS OR THESE TERMS, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS.

Assignment. Neither these Terms nor any rights or obligations under these Terms may be assigned or otherwise transferred by either party without the prior written consent of the other party; provided that, such prior written consent is not required for any assignment by either party to its Affiliates or to any successor of substantially all of its business or assets to which these Terms relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. These Terms shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.

Governing Law. These Terms shall be governed by the laws of the State of Georgia, USA, without regard to the conflicts of law provisions of any jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms. To the extent that any lawsuit is permitted under these Terms, the parties hereby expressly consent to the personal and exclusive jurisdiction and venue of the state and federal courts located in Fulton County, Georgia, USA (to the extent not addressed by arbitration below, if any).

Dispute Resolution. In the event of any dispute, claim, or controversy in connection with these Terms (collectively, “Disputes”), each party’s senior representatives will, in good faith, attempt to resolve the Dispute. If the parties are unable to resolve the Dispute within thirty (30) days or within such other time period as the parties may agree in writing, then the parties may commence binding arbitration under JAMS’ Comprehensive Arbitration Rules and Procedures. The parties will share equally the fees and expenses of the JAMS arbitrator. The arbitration will be conducted by a sole arbitrator mutually agreed to between the parties or, failing that, by JAMS under its then prevailing rules. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The arbitrator will have the authority to grant specific performance or any other equitable or legal remedy, including provisional remedies. Each party will be responsible for its own incurred expenses arising out of any dispute resolution procedure. Any arbitration proceedings will take place in Fulton County, Georgia, USA.

Injunctive Relief. Nothing contained in these Terms shall deny either party the right to seek immediate injunctive or other equitable relief from a court of competent jurisdiction: (a) in the context of a bona fide emergency or prospective irreparable harm to preserve the status quo pending resolution of a dispute between the parties or (b) where a party alleges or claims a violation of any agreement regarding intellectual property, confidential information or noninterference. Such an action may be filed and maintained notwithstanding any ongoing discussions between the parties or any ongoing arbitration proceeding.

Additional Customer Terms. Additional terms and conditions specific to certain products and services in the Offerings are set forth in the Addendum (the “Additional Customer Terms”). If you use any of the Offerings described in the Additional Customer Terms, the Additional Customer Terms will apply with respect to such Offerings, in addition to these Terms, and such Additional Customer Terms are incorporated herein by reference in their entirety.

Notice. All notices, consents and other communications hereunder shall be provided in writing and shall be delivered personally or by email or registered or certified mail (return receipt requested) to the parties at the addresses set forth on any Orders or in any User Account (or such other address as may have been furnished by or on behalf of such party by like notice); provided that, for any notices sent to us, a copy of the notice will be sent to legal@katalon.com. We may provide notice to you using your User Account or in-product notifications, or to your Admin contact information, including your Admin’s email address. You agree that any electronic communication will satisfy any applicable legal communication requirements, including that such communications be in writing. Communications sent by email shall be deemed delivered upon dispatch. Communications sent by registered or certified mail shall be deemed delivered upon receipt.

Publicity Rights. You agree that we may identify you as a customer and use your name, logo and a description of your use case on our website and in marketing and promotional materials, subject to your standard trademark usage guidelines that you provide to us. We will promptly stop doing so upon your request sent to legal@katalon.com.

Export Compliance. The Offerings may be subject to export laws and regulations of the United States and other jurisdictions. You represent that you and your officers, directors and other principals are not named on any U.S. government denied-party list. You shall not use or export the Offerings in violation of any U.S. export law or regulation.

U.S. Government End-Use Provisions. The following applies to all acquisitions of the Offerings and Documentation by or for the U.S. government or by any prime contractor or subcontractor under any contract, grant or other activity with the U.S. government. The Offerings and Documentation and services utilizing the Offerings and Documentation provided under these Terms are “commercial items” as that term is defined at 48 C.F.R. 2.101 consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and other applicable acquisition regulations and are provided to the U.S. Government only as a commercial item. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202, all U.S. Government users and licensees acquire the Offerings and its associated services and Documentation with only those rights and subject to the restrictions set forth in these Terms. Notwithstanding the foregoing, the Offerings and its associated services and Documentation may not be acquired by the U.S. government pursuant to a contract incorporating clauses prescribed by FAR Subpart 27.4 or DFARS Subpart 227.4.

Force Majeure. Nonperformance of either party, except for the making of payments, shall be excused to the extent that performance is rendered impossible by strike, fire, flood, earthquake, governmental acts or orders or restrictions, cyber-attacks, information security and data breaches caused by third parties, failure of cloud services, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of such party (collectively, “Force Majeure Events”). The party affected by a Force Majeure Event will take all reasonable actions to minimize the consequences of any such event.

Entire Agreement; Amendment. These Terms together with the Orders, and any attachments, schedules, exhibits and addenda (including without limitations, the Additional Customer Terms) referenced herein (the “Attachments”) constitute the entire agreement between the parties regarding the subject matter hereof. All prior or contemporaneous agreements, proposals, understandings, and communications between the parties regarding the subject matter hereof, whether oral or written, are superseded by and merged into these Terms. No modification or amendment to these Terms, nor any Attachment or Order, will be binding unless by an agreement in a writing signed by both parties that specifically references and clearly states the intention to amend these Terms, such Attachment or such Order, as applicable. Any terms and conditions set forth in an Order shall solely be applicable to such Order and shall not affect any other Orders between the parties. In the event of any conflict between these Terms and those of any Order or Attachment, these Terms will control (unless such Order or Attachment is intended to control), and the terms of an Order, an Attachment, and these Terms will prevail over any conflicting provision in any purchase order or any other instrument regardless of execution by the parties. You may not use a purchase order or other instrument not issued by us to modify or add to these Terms, and all such attempted modifications or additions to these Terms in any such purchase order or instrument shall be void and of no effect, even if accepted or signed by both parties. Any purchase orders that are accepted by us are accepted expressly subject to these Terms without regards to any additional or conflicting terms therein.

Other Miscellaneous Terms. The relationship between the parties to these Terms is and shall be that of independent contractors. It is expressly agreed that nothing in these terms shall be construed to create or imply a partnership, joint venture, agency relationship or contract of employment. There are no third-party beneficiaries to these Terms. Any waiver of the provisions of these Terms or of a party’s rights or remedies under these Terms must be in writing referencing these Terms to be effective. Failure, neglect, or delay by a party to enforce the provisions of these Terms or its rights or remedies at any time shall not be deemed to be a waiver of such party’s rights under these Terms and shall not prejudice such party’s right to take subsequent action. A party’s waiver of the performance of any covenant or any breach is not to be construed as a waiver of any succeeding breach or of any other covenant. If any term, condition, or provision in these Terms is found to be invalid, unlawful or unenforceable to any extent, the invalid, unlawful or unenforceable term, condition or provision shall be severed from the remaining terms, conditions and provisions, which shall continue to be valid and enforceable to the fullest extent permitted by law. No action arising out of these Terms, regardless of form, may be brought by you more than one year after the date the cause of action has accrued. The language of these Terms, any Attachments and all Orders is English. All contract interpretations, notices and dispute resolutions shall be in English. Translations of any of these documents are not to be construed as official or original versions of the documents.

Certain capitalized terms are defined below, and others are defined contextually in these Terms.

“Account Profile” means any profile or registration information (including profile or information relating to your organization or an individual User) that you or a User provides in the User Account, which may include but not limited to, your organization’s or an individual User’s name, email address and other contact information, username and password, and subscription, Order and payment information.

“Admin” means a personal (who is a User) designated by you to administer any Offerings to Users on your behalf.

“Affiliate” means any entity that directly or indirectly controls or is controlled by, or is under common control with, the party specified. For purposes of this definition, “control” means direct or indirect ownership of more than fifty percent (50%) of the voting interests of the subject entity.

“Cloud Products” means our hosted or cloud-based services and solutions, including any client software we provide as part thereof.

“Confidential Information” means any material or information disclosed by either party to the other party either directly or indirectly, relating to these Terms, in writing, orally or by inspection of tangible objects (including without limitation material or information relating to such party’s research, development, know-how, products, product plans, services, customer, customer lists, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, marketing, finances, or other business information or trade secrets), which is designated as “Confidential,” “Proprietary” or some similar designation, or information the confidential or proprietary nature of which is reasonably apparent under the circumstances. Confidential Information shall not include information which (a) becomes a part of the public domain through no act or omission of recipient; (b) was in recipient’s lawful possession prior to the disclosure by discloser and had not been subject to limitations on disclosure or use, as shown by recipient’s files existing at the time of disclosure; (c) is independently developed by recipient’s employees or independent contractors who have not had access to the Confidential Information; or (d) is lawfully disclosed hereafter to recipient, without restriction, by a third party who did not acquire the information directly or indirectly from discloser.

“Consultants” means your representatives, consultants, contractors, agents or other third parties who use or access the Offerings solely on your behalf as necessary to provide services to you.

“Customer” means a customer for your testing services and the resulting outpoint and who has a separate subscription to the applicable Offerings that you are providing such customer support therewith.

“Documentation” means our standard published documentation for the Offerings, including any usage guides and policies, currently located here.

“Laws” means all applicable local, state, federal and international laws, regulations and conventions, including those related to data privacy and data transfer, international communications and the exportation of technical or personal data.

“Offerings” means the products and services made available by us on or through the Software or Cloud Products (including without limitations, the Trial Services and Pre-Released Services), as designated on an Order and within the Scope of Use.

“Order” means our applicable online order form(s), flows, in-product screens or other ordering document or process approved by us that specifies, as applicable, mutually agreed upon (a) Offerings you are ordering from us (either directly by you or indirectly through a Reseller in accordance to your Reseller Agreement), (b) Scope of Use, and (c) (for a paid Order) the amount or rate you will be charged, the billing and renewal terms, applicable currency, and form of payment.

“Reseller” means a reseller, distributor or partner authorized by us in writing to resell or offer Offerings to you, in the case where you purchase such Offerings from such authorized reseller, distributor or partner.

“Scope of Use” means your authorized scope of use of an applicable Offering in compliance with the applicable Documentation and as designated on an Order, which may include (as applicable): (a) Subscription Terms, (b) number and type of Users or organizations, (c) numbers of licenses, copies, instances, nodes, executions or parallel execution sessions, (d) usage metrics, usage limits, data retention period, or other scope of use parameters, or (e) entity, division, business unit, website, field of use or other restrictions or billable units.

“Software” means our commercially available downloadable software products, including mobile applications of such products. Your Order will specify the Software that you may use.

“Subscription Term” means your permitted subscription period for a subscription-based Offering designated on an Order and any renewal thereof.

“Taxes” means any applicable taxes, levies, duties, or other similar exactions imposed by a legal, governmental, or regulatory authority in any applicable jurisdiction, including, without limitation, sales, use, value-added, consumption, communications, or withholding taxes.

“Test Content” means test scripts, records and other test data you send to or create and store in the Offerings, including the testing project name and date, test execution results (log, image, video) and reports, and execution environment information.

“User Account” means an account that contains an Account Profile, established by you or a User to enable the User to use or access the Offerings.

“Users” means the specific natural persons that are your employees or Additional Users, whom you permit and invite to use the applicable Offerings for your benefit or as otherwise permitted for such Additional Users, and for whom you have paid the required fees (as applicable).

“Your Data” means your Test Content, Account Profiles, and any data, content, code, video, images or other materials of any type that you (including any of your Users) submit, upload or transmit to, or otherwise make available on, the Offerings.

If you use any of the Offerings below, these Additional Customer Terms (“Additional Terms”) will apply with respect to such Offerings, in addition to the Customer Terms of Use (the “Customer Terms”, the Customer Terms together with the Additional Terms shall hereafter be referred to as this “Agreement”). All defined terms used herein but not otherwise defined, shall have the meanings given to them in the Customer Terms.

If you purchase or otherwise use Software as part of the Offerings, you agree to comply with these additional restrictions:

• Upon termination of any Order for the Software for any reason, you will promptly at our option either return or destroy all copies of the Software and any related Documentation in your possession or control.
• Unless otherwise specified in an Order, for each Software license that you purchase, you may install one (1) production instance of the Software on systems owned or operated by you or one of your Users.
• Use of the Software is limited to use in object-code form only. With respect to your use of the Software for Customers as permitted in the Agreement, you may not provide access or use of your copies of the Software to the Customers or include the Software as part of a product, service or other offering you provide to the Customers. In addition, you must verify that each Customer has its own copy of the Software.
• Except for the limited rights expressly granted in this Agreement, we reserve all rights, title and interest in and to the Software, including all related intellectual property rights. No rights are granted to you hereunder other than as expressly set forth above in this Agreement. Without limiting the generality of the foregoing, you may not (a) distribute outside your organization, sublicense, copy, modify, or publicly display the Software, (b) use on behalf of any third party, or permit any third party to use, the Software (except for the limited use for Additional Users described in the Customer Terms), (c) decompile or reverse engineer the Software, (d) remove any proprietary rights notices on the Software, or (e) attempt to gain unauthorized access to the Software, interfere with, or otherwise circumvent any security measures or mechanisms to limit your use within the Software. If you believes you are entitled to reverse engineer the Software because of rights that may be granted as a matter of local law, such as the Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs (as amended), then (i) you shall first request the technical information from us, (ii) this technical information may be used only for the purposes of ensuring interoperability and compatibility, and (iii) the technical information will be considered our Confidential Information and treated as such according to this Agreement.
• You acknowledge that the Software may include open source and freeware software and materials licensed from third parties (“Third Party Components”) and that such third parties may be third party beneficiaries to this Agreement with the ability to directly enforce the provisions pertaining to their Third Party Components. You shall comply with the additional license terms, restrictions and conditions (including notices) pertaining to the Third Party Components or which we otherwise makes available to you (“Third Party Terms”). The Third Party Terms may have additional rights and requirements which apply to the Third Party Components and the terms in this Agreement are offered by us alone and do not limit the rights that may be granted in those Third Party Terms. However, you shall notify us before attempting to modify any Third Party Components, and our support, warranty and indemnification obligations (if any) do not apply where Third Party Components has been modified.
• You are solely responsible for ensuring that your systems meet the hardware, software and any other applicable system requirements for the Software as specified in the Documentation. We will have no obligations or responsibility under this Agreement for issues caused by your use of any third-party hardware or software not provided by us.
• At our request, you agree to provide a signed certification that you are using all Software pursuant to the terms of this Agreement, including the Scope of Use. You agree to allow us, or our authorized agent, to audit your use of the Software (including that of your Users). We will provide you with at least ten (10) days advance notice prior to the audit, and the audit will be conducted during normal business hours. We will bear all out-of-pocket costs that we incur for the audit, unless the audit reveals that you have exceeded the Scope of Use. You will provide reasonable assistance, cooperation, and access to relevant information in the course of any audit at your own cost. If you exceed your Scope of Use, we may invoice you for any past or ongoing excessive use, and you will pay the invoice promptly after receipt. This remedy is without prejudice to any other remedies available to us at law or equity or under this Agreement. To the extent we are obligated to do so, we may share audit results with certain of our third-party licensors or assign the audit rights specified herein to such licensors.
• Software identified in an Order as being provided on a “Floating License” basis may be installed and used on any computer within your internal enterprise network. Each Floating License subscription is assigned to one parallel usage session and shared across multiple User Accounts up to a maximum of three User Accounts at a time. Under a Floating License, you may use the applicable Software for the number of concurrent Users equal to the number of Floating License subscriptions purchased.
• Software identified in an Order as being provided on a “Node-Locked License” basis means the applicable Software is tied to one specific Machine. This license applies for physical or virtual Machines with fixed hardware specifications in each execution session. As used herein, a “Machine” means a single computer operated by you on which you may run the Software.
• By default, the Software will operate with online access (including for activation, support and updates). If you operate an instance of the Software offline (with no online access for activation, support or updates) on a Machine within your enterprise environment (“Offline Mode”), then the following terms apply:
  For Node-Locked Licenses. If you purchase a subscription to the Software under Node-Locked Licenses with Offline Mode, then any User may convert the User’s subscription access to Offline Mode. The User will submit into the subscription manager portion of the User Account the Machine ID of the Machine on which you will install the Software and obtain a license key from us in order to activate your copy of the Software on that Machine. Each instance of the Software in Offline Mode will count as a User’s subscription as part of the subscriptions for which you have paid. The Offline Mode for the applicable Software instance will expire 60 days from the date the User’s subscription is first put into Offline Mode (or the end of the Subscription Term, if that happens earlier).
  For Floating Licenses. If you purchase and deploy Floating Licenses for the applicable Software with Offline Mode, you must download and install the Katalon License Server to manage and track subscriptions. You will indicate to us the number of parallel usage sessions that will be conducted in Offline Mode. In such case, subject to the terms and conditions of this Agreement, we grant you a non-exclusive, nontransferable, non-sublicensable license to use the Katalon License Server solely as necessary to manage and track the subscriptions of the Software, as applicable. You will permit us to remotely access the Katalon License Server twice per year or provide us with a server-generated report from the Katalon License Server in the format specified by us, in each case so that we can verify usage is within the purchased subscription.

If you purchased the Offerings from a Reseller, then to the extent there is any conflict between this Agreement and the agreement entered between you and the respective Reseller, including any purchase order (“Reseller Agreement”), then, as between you and us, this Agreement shall prevail. Any rights granted to you in such Reseller Agreement which are not contained in, or consistent with, this Agreement, apply only in connection with the Reseller. In that case, you must seek redress or realization or enforcement of such rights solely with the Reseller and not us. The Reseller is not authorized to modify this Agreement or make any promises or commitments on our behalf, and we are not bound by any obligations to you other than as set forth in this Agreement. These additional terms shall apply to your use of the Offerings through a Reseller:

• Your Reseller may also be added as an Additional User, provided that your Reseller is permitted to use the Offerings solely on your behalf as necessary for such Reseller to provide you services.
• The fees and subscription number/type for the Offerings will be set forth in the Reseller Agreement between you and the Reseller.
• You and your Users’ access to the Offerings is subject to our receipt from such Reseller of the payment of the applicable fees paid by you to the Reseller. You hereby acknowledge that at any time, at our discretion, the billing of the fees for your use of the Offerings purchased through a Reseller may be assigned to us, such that you shall pay us directly the respective fees. We may suspend or terminate your rights to use the Offerings if we do not receive the corresponding payment from the Reseller.
• Instead of an Order with us, your order details (e.g., the Offerings, Subscription Term, and Scope of Use) will be as stated in the Order placed with us by the Reseller on your behalf, and the Reseller is responsible for the accuracy of any such Order as communicated to us.
• If you are entitled to a refund under this Agreement, then unless otherwise specified by us, we will refund any applicable fees to the Reseller and the Reseller will be solely responsible for refunding the appropriate amounts to you.

We may offer, from time to time, part or all of our products and services on the Offerings on a free, no-obligation trial version (“Trial Services”). The term of the Trial Services shall be as communicated to you within the Offerings or in an Order, unless terminated earlier by either you or us, for any reason or for no reason. We reserve the right to modify, cancel and/or limit any Trial Services at any time and without liability or explanation to you.

Trial Services of Katalon Studio. Trial Services for Katalon Studio that are not otherwise restricted by usage limit, are limited to one user for individual use only and not on behalf of any organization, and “you” as used in this Agreement for such Trial Services, means you as an individual natural person.

Pre-Released Services. We may offer, from time to time, certain products or services on our Offerings in an Alpha or Beta versions or otherwise still under development (the “Pre-Released Services”). We use our best endeavors to identify such Pre-Released Services as such. Pre-Released Services may be inoperable or incomplete, and may contain bugs, suffer disruptions and/or not operate as intended and designated, more than usual. We reserve the right to modify, cancel and/or limit any Pre-Released Services at any time and without liability or explanation to you.

Governing Terms of Trial Services and Pre-Released Services. We grant you access and use of the Trial Services and Pre-Released Services subject to this Agreement and within the Scope of Use, provided that notwithstanding anything in this Agreement or elsewhere to the contrary, in respect of Trial Services and Pre-Released Services (a) such services are provided or licensed (as applicable) hereunder on as “As-Is”, “With All Faults”, “As Available” basis, with no warranties, express or implied, of any kind; (b) any indemnity undertaking by us in this Agreement shall not apply; and (c) IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF KATALON, ITS AFFILIATES OR ITS THIRD PARTY SERVICE PROVIDERS, UNDER, OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, EXCEED US$100. We make no promises that any Trial Services and/or Pre-Released Services will be made available to you and/or generally available.

Changes to Terms. We may modify the terms and conditions in this Agreement related to Trial Services and Pre-Released Services from time to time, with notice to you in accordance with the provision on Notices in the Customer Terms or by posting the modified terms on our website. Together with the notice, we will specify the effective date of the modifications. You must accept the modifications to continue using Trial Services or Pre-Released Services. If you object to the modifications, your exclusive remedy is to cease using the Trial Services or Pre-Released Services.

Certain Plugins maybe be included with the Offerings or available on Katalon Store. You must activate any eligible Plugins that you want to use on the Offerings. In addition to this Agreement, if you use Plugins, you are also subject to the Katalon Store and Plugin Terms, which are incorporated herein by reference in their entirety.

Welcome to the Katalon Offerings! Katalon, Inc. and/or its Affiliates (“Katalon”, “we”, “us” or “our”) provide the Offerings subject to the following conditions.

Please review these Customer Terms of Use (these “Terms”) carefully. These Terms are between you and the Katalon entity that owns or operate the Offering that you are using or accessing. “You” or “your” means, unless otherwise indicated, your employer or another entity you represent, as applicable. You hereby represent that (a) you have full legal authority to bind your employer or such entity (as applicable) to these Terms; and (b) after reading and understanding these Terms, you agree to these Terms on behalf of your employer or the respective entity (as applicable), and these Terms shall bind your employer or such entity (as the case may be). PLEASE NOTE THAT YOU ARE DEEMED AS AN AUTHORIZED REPRESENTATIVE OF YOUR EMPLOYER OR AN ENTITY (AS APPLICABLE): (I) IF YOU ARE USING YOUR EMPLOYER OR AN ENTITY’S EMAIL ADDRESS IN REGISTERING AN ACCOUNT TO USE THE OFFERINGS; OR (II) IF YOU ARE AN ADMIN (AS DEFINED BELOW).

If you have a separate written agreement with us for your use of the Offerings, these Terms will not apply to you, unless that written agreement does not cover a particular product or service, in which case, these Terms apply solely to your use of that particular product or service.

A glossary of defined terms is included at the end of these Terms.

Account. You must register for an account with us in order to place Orders or access and use the Offerings. When creating a User Account or when you are added into a User Account, you: (a) agree to provide us with accurate, complete, and current registration information for all Users; (b) acknowledge that it is your and each User’s responsibility to ensure that such User’s password remains confidential and secure; (c) agree that you are fully responsible for all activities that occur under User Accounts; and (d) undertake to promptly notify us in writing if you become aware of any unauthorized access or use of User Accounts and/or any breach of these Terms. We may assume that any communications we receive under User Accounts have been made by you. You will be solely responsible and liable for any losses, damages, liability and expenses incurred by us or a third party, due to any unauthorized usage of the User Account by either you or any other User or third party on your behalf.

Administration. The Offerings allow you to specify Users, including Admins. An Admin may have the ability to make Orders or enable features, products or services (which may incur fees); creating, de-provisioning, monitoring or modifying User Accounts, and setting User usage permissions or subscription renewal options; integrate or disable integration with Plugins and third-party products or services; and managing Your Data by Users or others. You are responsible for whom you allow to become Admins and any actions they take, including as described above. You agree that our responsibilities do not extend to the internal management or administration of the Offerings to you.

Users. Only Users may access and use the Offerings. Some Offerings may allow you to designate different types of Users, in which case pricing and functionality may vary according to the type of User. You are responsible for the actions taken by your Users, and the compliance with these Terms by all Users, including what Users do with Your Data, and for all fees incurred by Users (or from adding Users). Any Offerings identified in an Order as being provided on per “user” basis has a specific natural person associated with each subscription, who must be identified in the User Account, and may not be changed in a manner to circumvent the number of Users permitted. A User associated with a “user” based subscription may access and use the applicable Offerings on any Internet browser and/or computer within your internal enterprise network, provided that only one User is assigned to a User Account and multiple individuals may not share the same User Account.

Access to Offerings. Subject to these Terms and during the applicable Subscription Term, you are granted a non-exclusive, non-sublicensable and non-transferable right for Users to access and use the Offerings for (a) your internal business purposes for your and your Affiliates’ benefits, and (b) the internal business purposes of your Customers as part of the services that you provide to them, as applicable.

Use by Your Affiliates, Contractors, and Customers. You are only permitted to add your Affiliates, Contractors, and Customers as Users (“Additional Users”) to access and use the Offerings, provided that:

• Use by each of your Additional Users are subject to these Terms, and you remain responsible for each of your Additional Users’ compliance with these Terms;
• Contractors are permitted to use the Offerings solely on your behalf as necessary to provide services to you; and
• Customers are permitted to use the Offerings as part of the services that you provide to them in respect to your products and services.

Ownership and General Restrictions. As between the parties, we exclusively own and reserves all right, title, and interest in and to the Offerings, the Documentation, and our Confidential Information. As between the parties, you exclusively own and reserve all right, title, and interest in and to your Confidential Information and Your Data, subject to our rights to process Your Data in accordance with these Terms. Except for the limited rights expressly granted above, we reserve all rights, title and interest in and to the Offerings, including all intellectual property rights therein. No rights are granted to you hereunder other than as expressly set forth above in these Terms. Without limiting the generality of the foregoing, except as otherwise expressly permitted in these Terms, you will not (a) use the Offerings for the benefit of any third party, or permit any third party to use the Offerings (other than as expressly permitted with respect to your Additional Users), (b) reproduce, modify, adapt or create derivative works of the Offerings, (c) reverse engineer, disassemble, decompile, translate or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to the Offerings, except to the extent expressly permitted by applicable law (and then only upon advance notice to us), (d) remove or obscure any proprietary or other notices on the Offerings, (e) attempt to gain unauthorized access to the Offerings, interfere with, or otherwise circumvent any security measures or mechanisms intended to limit your use within the Offerings, (f) use the Offerings for competitive analysis, product benchmark or to build competitive products; (g) publicly disseminate information regarding the performance of any products or services on the Offerings; (h) use the Offerings to transmit or store any malicious code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses; or (i) encourage or assist any third party to do any of the foregoing.

Fees. Unless otherwise set forth on an Order, you will be charged the applicable rates available at https://www.katalon.com/pricing or as otherwise made available on the Offerings. You agree to pay us the fees for the Offerings. Unless otherwise set forth in an applicable Order, payment shall be due within thirty (30) days of receipt of our invoice and shall be made in United States dollars, and invoices may be submitted through your Admin’s User Account or via email to the email address(es) you designate in your Admin’s User Account. Subject to any payment dispute (below), payment obligations are non-cancelable and all fees, once paid, are non-refundable. You agree (a) that any and all discounts, incentives and promotional pricings offered to you are conditioned upon your timely payments of all fees due hereunder; (b) that if you default on any payment, all unpaid fees for your Subscription Term shall be accelerated so that such unpaid fees are immediately due and payable; and (c) to pay a late charge of one and one-half percent (1.5%) per month (or part of a month), or the maximum lawful rate permitted by applicable law, whichever is less, for all amounts, not subject to a good faith dispute (below), and not paid when due. We may suspend the provision of the Offerings to any and all of your User Accounts until all fees due are paid in full. You are prohibited from creating new accounts until all fees due are paid in full.

Taxes. All fees are exclusive of Taxes. You will pay all Taxes associated with these Terms, excluding any taxes based on our net income, property, or employees. If you are required by applicable law to withhold any Taxes from payments owed to us, you will reduce or eliminate such withheld Taxes upon receipt of the appropriate tax certificate or document provided by us. You will provide us with proof of payment of any withheld Taxes to the appropriate authority. Taxes will be shown as a separate line item on an invoice.

Increasing Usage Limits. You may add users, increase limits, or otherwise increase the Scope of Use of the Offerings by placing a new Order or modifying an existing Order, as permitted on the Offerings. Unless otherwise specified in the applicable Order, we will charge you for any increased use at our then-current rates, prorated for the remainder of the then-current Subscription Term.

Payment Disputes. You will notify us in writing within thirty (30) days of the date we bill you for any fees that you wish to dispute. Where you are disputing any fees, you must act reasonably and in good faith and will cooperate diligently with us to resolve the dispute. We will not charge you a late fee or suspend the provision of the Offerings for unpaid fees that are in dispute, unless you fail to cooperate diligently with us, or we determine the dispute is not reasonable or not brought in good faith by you.

Test Content. As between the parties, you retain all right, title and interest (including any and all intellectual property rights) in and to your Test Content and any modifications made thereto in the course of the operation of the Offering. You grant us and our Affiliates the right to copy, display, modify, store, use and process your Test Content to provide services and to enable you to use the Offerings in a manner that is consistent with these Terms. You are responsible for the quality and integrity of your Test Content. You are solely responsible for the accuracy, content and legality of all your Test Content. You represent and warrant that you have sufficient rights in your Test Content to grant the rights granted to us hereunder and that your Test Content does not infringe or violate the intellectual property, publicity, privacy or other rights of any third party. You agree not to upload to the Offerings (a) any patient, medical or other protected information regulated by HIPAA or any similar federal or state laws, rules or regulations or (b) any financial or accounting data or payment information, other than your credit card information for account payment processing of the fees, which is processed and stored by our third-payment payment service provider and not processed or stored by us.

Removals and Suspension. We have no obligation to monitor any content uploaded to the Offerings. Nonetheless, if we deem such action necessary based on your violation of these Terms or in response to takedown requests for violations of third-party intellectual property rights, we may remove Your Data from the Offerings and/or suspend your access to the Offerings. We will use reasonable efforts to provide you with advance notice of removals and suspensions when practicable, but if we determine that your actions endanger the operation of the Offerings or other users, we may suspend your access or remove you’re your Data immediately without notice. We have no liability to you for removing or deleting you’re your Data from or suspending your access to any Offerings.

Non-Use and Nondisclosure. Each party shall treat as confidential all Confidential Information of the other party, shall not use such Confidential Information except to exercise its rights and perform its obligations under these Terms, and shall not disclose such Confidential Information to any employee or third party, except to those Users, employees, advisors or representatives of the recipient who are under a contractual or fiduciary duty of confidentiality similar in content to the provisions hereof and whom the recipient will remain responsible for hereunder (“Representatives”) and who are required to have access to such Confidential Information in order to perform the obligations under these Terms. Without limiting the foregoing, each of the parties shall use at least the same degree of care it uses to prevent the disclosure of its own confidential information of like importance, which care shall be no less than reasonable care, to prevent the disclosure of Confidential Information of the other party.

Exceptions. The receiving party may disclose Confidential Information of the disclosing party if so required pursuant to a regulation, law, subpoena, or court order (collectively, “Compelled Disclosures”), provided the receiving party gives the disclosing party notice of a Compelled Disclosure (to the extent legally permitted). The receiving party will provide reasonable cooperation to the disclosing party in connection with a Compelled Disclosure at the disclosing party’s sole expense.

Feedback. You may provide suggestions, feedback and other information to us regarding possible improvements in the operation, functionality or use of the Offerings (“Feedback”). We have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Offerings and related systems and technologies, including without limitation operating speed, memory usage, throughput, bandwidth, errors and error rates, user logins, feature usage, performance data, and other information reasonably necessary to confirm that you and your Users are complying with license usage restrictions (“Usage Data”). You hereby grants us the perpetual, irrevocable, sublicensable right to use, copy, modify, create derivative works of and otherwise fully exploit (a) Usage Data and the Feedback to improve the operation, functionality or use of our existing and future offerings and commercializing such offerings; (b) the Usage Data to publish aggregated statistics about product quality, provided that no data in any such publication can be used to specifically identify you or your Users; and (c) the Usage Data to confirm that you are complying with license usage restrictions.

Changes to these Terms. We may modify the terms and conditions of these Terms from time to time, with notice to you in accordance with the provision on Notices below or by posting the modified Terms on our website; provided however, any modifications to these Terms will take effect at the next renewal of your Subscription Term and will automatically apply as of the renewal date unless you elect not to renew. Notwithstanding the foregoing, in some cases (e.g., to address compliance with Laws, or as necessary for new features) we may specify that such modifications become effective during your then-current Subscription Term. If the effective date of such modifications is during your then-current Subscription Term and you object to the modifications, then (as your exclusive remedy) you may terminate your affected Orders upon notice to us, and we will refund to you any fees you have pre-paid for use of the affected Offering for the terminated portion of the applicable Subscription Term. To exercise this right, you must provide us with notice of your objection and termination within thirty (30) days of us providing notice of the modifications. For the avoidance of doubt, any Order is subject to the version of these Terms in effect at the time of the Order.

Term. These Terms will commence upon your acceptance of an Order, your creation or access to a User Account, or your download, installation, activation or use of the Offerings and will remain in effect until otherwise terminated as set forth below.

Termination. A party may terminate any Order if the other party commits any material breach of such Order (or the provisions of these Terms applicable to the particular Order) and does not remedy the material breach within thirty (30) days after the date that it receives notice of the breach. These Terms may be terminated by either party immediately upon written notice, in the event that: (a) the other party files a petition, in bankruptcy, seeking any reorganization, arrangement, composition, or similar relief under any law regarding insolvency or relief for debtors, or makes an assignment for the benefit of creditors; (b) a receiver, trustee, or similar officer is appointed for the business or property of such party; or (c) the other party adopts a resolution for discontinuance of its business or for dissolution. We may terminate these Terms or any Orders in the event you fail to make any payments of fees when such payments are due. Termination of an Order shall not be deemed a termination of these Terms. Termination of these Terms shall, however, terminate all outstanding Orders. Either party may also terminate these Terms upon no less than thirty (30) days’ prior written notice to the other party for any reason, if at such time there are no outstanding Orders then currently in effect.

Suspension of the Offerings. We may suspend use of the Offerings immediately upon notice to you for cause if we, in good faith, determines: (a) that you or your Users materially breach (or we, in good faith, believes that you or your Users have materially breached) any provision of these Terms, and such breach violates a third party right or materially impacts the performance of the Offerings or other users’ enjoyment of the Offerings; (b) there is an unusual and material spike or increase in your use of the Offerings and that such traffic or use is fraudulent or materially and negatively impacting the operating capability of any products or services on the Offerings; (c) that our provision of the products or services on the Offerings is prohibited by applicable law or regulation; (d) there is any use of the Offerings by you or your Users that threatens the security, integrity, or availability of the Offerings; or (e) that information in your User Account or User Accounts of your Users are untrue, inaccurate, incomplete or otherwise fraudulent. You remain responsible for all fees.

Subscription Auto-Renewal. To ensure that you will not experience any interruption or loss of services, your Offerings include an automatic renewal option by default, according to which, unless you disable the auto-renewal option or cancel your subscription prior to its expiration, the subscription will automatically renew upon the end of the then applicable Subscription Term for a period of like term. You will provide any notice of non-renewal through the means we designate, which may include account settings on the Offerings or contacting our support team. Cancelling your subscription means that you will not be charged for the next billing cycle, but you will not receive any refunds or credits for amounts that have already been charged. Unless specified in an applicable Order, all renewals (a) are subject to the applicable products or services continuing to be offered on the Offerings, (b) will be charged at the then-current prices for the applicable Offerings, (c) will exclude any discount or other promotions offered during the prior Subscription Term, and (d) are subject to any changes in usage policies, usage limits or other Scope of Use. You agree that we may bill your credit card or other payment method for renewals, additional users, overages to set limits or Scopes of Use, expenses, and unpaid fees, as applicable. Either party may elect to not renew an Order by giving the other party at least thirty (30) days’ written notice to terminate such Order before the beginning of the next Subscription Term for such Order, and such termination shall be effective at the end of the then current Subscription Term.

Effect of Termination. Upon any termination or expiration of these Terms or any applicable Order, we shall no longer provide the applicable Offerings to you, and you shall promptly cease and cause your Users to promptly cease using the applicable Offerings. Upon termination of these Terms, each party shall promptly return or destroy all Confidential Information of the other party in its possession, except that each party may keep a copy of the other party’s Confidential Information for archival purposes, or otherwise in accordance with their respective internal recordkeeping procedures, or in compliance with applicable Laws, and will not be required to delete or destroy any copies maintained in its normal-course back-up media. After termination of any Order, we will have no obligation to store and/or make available Your Data for the applicable Offerings, and we may delete the same. All rights and obligations of the parties which by their nature are reasonably intended to survive such termination or expiration will survive termination or expiration of these Terms and each Order.

Offering Warranty. We warrant that during the Subscription Term, the Offerings will conform, in all material respects, with the Documentation. Such warranty shall only apply if the Offerings have been utilized by you in accordance with the Order, the Documentation, and these Terms. For any breach of our representation and warranty, your exclusive remedies are those described in the “Termination” section.

Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, WE MAKE NO, AND DISCLAIMS ALL, WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WE DO NOT REPRESENT OR WARRANT THAT THE OFFERINGS WILL BE ERROR-FREE OR THAT THE OFFERINGS WILL MEET YOUR OR YOUR USERS’ REQUIREMENTS OR THAT ALL ERRORS IN THE OFFERINGS WILL BE CORRECTED, AND WE MAKE NO WARRANTIES AND DISCLAIM ALL WARRANTIES WITH RESPECT TO ANY THIRD-PARTY COMPONENTS OR APPLICATIONS. THE WARRANTIES STATED IN THIS SECTION ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY US. Without limiting the foregoing, you agree that we shall have no liability for errors or omissions in the output of the Offerings, such outputs including, without limitation, the quality or accuracy of any screen displays or reports, in the transmission and reception of data, or in the processing of such data by the Offerings. You agree that any use or purchase of our products or services shall not be contingent on the delivery of any future functionality or features, or dependent on any oral or written comments we make regarding future functionality or features.

Our Indemnification. We will defend you, your Affiliates and their respective officers, directors, employees and agents (collectively, the “Customer Indemnitees”), against any claim, demand, suit or proceeding made or brought against any of the Customer Indemnitees by a third party alleging that the Offerings infringe or misappropriate such third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify the Customer Indemnitees from any damages (including reasonable attorney fees and costs) finally awarded against any of the Customer Indemnitees as a result of, or for amounts paid under a court-approved settlement of, a Claim Against Customer. If a Claim Against Customer is brought or is likely, in our sole opinion, to be brought, we will, at our option and expense (a) obtain the right for you to continue using the Offering; (b) replace or modify the affected Offering so that it becomes non-infringing; or (c) upon notice to you, terminate these Terms or your use of the affected Offerings, provided that in the case of subsection (c) we will promptly refund to you the prorated portion of any unearned pre-paid subscription fees paid hereunder for the affected Offerings. Our obligations in this section do not cover third party claims to the extent such claims arise from: (i) any products, services, technology, materials or data created or provided by a party other than us (including without limitation Your Data), (ii) any part of the Offerings made in whole or in part in accordance to your specifications, (iii) any modifications not made by us, (iv) any combination with other products, processes or materials not provided by us (where the alleged damages, costs or expenses arise from or relate to such combination), (v) where you continue the allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) your use of the Offerings not strictly in accordance with these Terms, the Scope of Use or any Documentation ((i) through (vi), the “Excluded Claims”).

Your Indemnification. You will defend us, our Affiliates and their respective officers, directors, employees and agents (collectively, the “Katalon Indemnitees”) against any claim, demand, suit or proceeding made or brought against any or all of the Katalon Indemnitees by a third party arising out of or attributable to the Excluded Claims, and will indemnify the Katalon Indemnitees from any damages, reasonable attorney fees and costs finally awarded against the Katalon Indemnitees as a result of, or for any amounts paid under a court-approved settlement of an Excluded Claim.

Indemnification Procedure. Each party’s obligation to indemnify the other party is conditioned on the party seeking indemnification: (a) promptly notifying the indemnifying party in writing of any claim, suit or proceeding for which indemnity is claimed, provided that failure to so notify will not remove the indemnifying Party’s obligation except to the extent it is prejudiced thereby, (b) allowing the indemnifying party to solely control the defense of any claim, suit or proceeding and all negotiations for settlement; provided that the indemnifying party shall not settle any claim that requires the indemnified party to admit fault without the indemnified party’s prior written consent (such consent not to be unreasonably withheld or delayed), and (c) giving the indemnifying party reasonable assistance in the defense and settlement of any claim, suit or proceeding for which indemnity is claimed.

Sole Remedy. The foregoing indemnity obligations state the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this section.

Limitation of Liability. EXCEPT FOR EACH PARTY’S VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS AND EACH PARTY’S INDEMNIFICATION OBLIGATIONS ABOVE, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY UNDER THESE TERMS OR OTHERWISE, REGARDLESS OF THE FORM OF CLAIM OR ACTION, IN AN AMOUNT THAT EXCEEDS THE FEES YOU HAVE PAID FOR THE OFFERINGS UNDER THE APPLICABLE ORDER IN THE PRECEDING 12 MONTHS. EXCEPT FOR EACH PARTY’S VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT WILL A PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES OR COSTS (INCLUDING WITHOUT LIMITATION, LOSS OF GOODWILL OR PROFIT, BUSINESS INTERRUPTION, LOSS OF BUSINESS) IN CONNECTION WITH THE OFFERINGS OR THESE TERMS, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS.

Assignment. Neither these Terms nor any rights or obligations under these Terms may be assigned or otherwise transferred by either party without the prior written consent of the other party; provided that, such prior written consent is not required for any assignment by either party to its Affiliates or to any successor of substantially all of its business or assets to which these Terms relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. These Terms shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.

Governing Law. These Terms shall be governed by the laws of the State of Georgia, USA, without regard to the conflicts of law provisions of any jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms. To the extent that any lawsuit is permitted under these Terms, the parties hereby expressly consent to the personal and exclusive jurisdiction and venue of the state and federal courts located in Fulton County, Georgia, USA (to the extent not addressed by arbitration below, if any).

Dispute Resolution. In the event of any dispute, claim, or controversy in connection with these Terms (collectively, “Disputes”), each party’s senior representatives will, in good faith, attempt to resolve the Dispute. If the parties are unable to resolve the Dispute within thirty (30) days or within such other time period as the parties may agree in writing, then the parties may commence binding arbitration under JAMS’ Comprehensive Arbitration Rules and Procedures. The parties will share equally the fees and expenses of the JAMS arbitrator. The arbitration will be conducted by a sole arbitrator mutually agreed to between the parties or, failing that, by JAMS under its then prevailing rules. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The arbitrator will have the authority to grant specific performance or any other equitable or legal remedy, including provisional remedies. Each party will be responsible for its own incurred expenses arising out of any dispute resolution procedure. Any arbitration proceedings will take place in Fulton County, Georgia, USA.

Injunctive Relief. Nothing contained in these Terms shall deny either party the right to seek immediate injunctive or other equitable relief from a court of competent jurisdiction: (a) in the context of a bona fide emergency or prospective irreparable harm to preserve the status quo pending resolution of a dispute between the parties or (b) where a party alleges or claims a violation of any agreement regarding intellectual property, confidential information or noninterference. Such an action may be filed and maintained notwithstanding any ongoing discussions between the parties or any ongoing arbitration proceeding.

Additional Customer Terms. Additional terms and conditions specific to certain products and services in the Offerings are set forth in the Addendum (the “Additional Customer Terms”). If you use any of the Offerings described in the Additional Customer Terms, the Additional Customer Terms will apply with respect to such Offerings, in addition to these Terms, and such Additional Customer Terms are incorporated herein by reference in their entirety.

Notice. All notices, consents and other communications hereunder shall be provided in writing and shall be delivered personally or by email or registered or certified mail (return receipt requested) to the parties at the addresses set forth on any Orders or in any User Account (or such other address as may have been furnished by or on behalf of such party by like notice); provided that, for any notices sent to us, a copy of the notice will be sent to legal@katalon.com. We may provide notice to you using your User Account or in-product notifications, or to your Admin contact information, including your Admin’s email address. You agree that any electronic communication will satisfy any applicable legal communication requirements, including that such communications be in writing. Communications sent by email shall be deemed delivered upon dispatch. Communications sent by registered or certified mail shall be deemed delivered upon receipt.

Publicity Rights. You agree that we may identify you as a customer and use your name, logo and a description of your use case on our website and in marketing and promotional materials, subject to your standard trademark usage guidelines that you provide to us. We will promptly stop doing so upon your request sent to legal@katalon.com.

Export Compliance. The Offerings may be subject to export laws and regulations of the United States and other jurisdictions. You represent that you and your officers, directors and other principals are not named on any U.S. government denied-party list. You shall not use or export the Offerings in violation of any U.S. export law or regulation.

U.S. Government End-Use Provisions. The following applies to all acquisitions of the Offerings and Documentation by or for the U.S. government or by any prime contractor or subcontractor under any contract, grant or other activity with the U.S. government. The Offerings and Documentation and services utilizing the Offerings and Documentation provided under these Terms are “commercial items” as that term is defined at 48 C.F.R. 2.101 consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and other applicable acquisition regulations and are provided to the U.S. Government only as a commercial item. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202, all U.S. Government users and licensees acquire the Offerings and its associated services and Documentation with only those rights and subject to the restrictions set forth in these Terms. Notwithstanding the foregoing, the Offerings and its associated services and Documentation may not be acquired by the U.S. government pursuant to a contract incorporating clauses prescribed by FAR Subpart 27.4 or DFARS Subpart 227.4.

Force Majeure. Nonperformance of either party, except for the making of payments, shall be excused to the extent that performance is rendered impossible by strike, fire, flood, earthquake, governmental acts or orders or restrictions, cyber-attacks, information security and data breaches caused by third parties, failure of cloud services, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of such party (collectively, “Force Majeure Events”). The party affected by a Force Majeure Event will take all reasonable actions to minimize the consequences of any such event.

Entire Agreement; Amendment. These Terms together with the Orders, and any attachments, schedules, exhibits and addenda (including without limitations, the Additional Customer Terms) referenced herein (the “Attachments”) constitute the entire agreement between the parties regarding the subject matter hereof. All prior or contemporaneous agreements, proposals, understandings, and communications between the parties regarding the subject matter hereof, whether oral or written, are superseded by and merged into these Terms. No modification or amendment to these Terms, nor any Attachment or Order, will be binding unless by an agreement in a writing signed by both parties that specifically references and clearly states the intention to amend these Terms, such Attachment or such Order, as applicable. Any terms and conditions set forth in an Order shall solely be applicable to such Order and shall not affect any other Orders between the parties. In the event of any conflict between these Terms and those of any Order or Attachment, these Terms will control (unless such Order or Attachment is intended to control), and the terms of an Order, an Attachment, and these Terms will prevail over any conflicting provision in any purchase order or any other instrument regardless of execution by the parties. You may not use a purchase order or other instrument not issued by us to modify or add to these Terms, and all such attempted modifications or additions to these Terms in any such purchase order or instrument shall be void and of no effect, even if accepted or signed by both parties. Any purchase orders that are accepted by us are accepted expressly subject to these Terms without regards to any additional or conflicting terms therein.

Other Miscellaneous Terms. The relationship between the parties to these Terms is and shall be that of independent contractors. It is expressly agreed that nothing in these terms shall be construed to create or imply a partnership, joint venture, agency relationship or contract of employment. There are no third-party beneficiaries to these Terms. Any waiver of the provisions of these Terms or of a party’s rights or remedies under these Terms must be in writing referencing these Terms to be effective. Failure, neglect, or delay by a party to enforce the provisions of these Terms or its rights or remedies at any time shall not be deemed to be a waiver of such party’s rights under these Terms and shall not prejudice such party’s right to take subsequent action. A party’s waiver of the performance of any covenant or any breach is not to be construed as a waiver of any succeeding breach or of any other covenant. If any term, condition, or provision in these Terms is found to be invalid, unlawful or unenforceable to any extent, the invalid, unlawful or unenforceable term, condition or provision shall be severed from the remaining terms, conditions and provisions, which shall continue to be valid and enforceable to the fullest extent permitted by law. No action arising out of these Terms, regardless of form, may be brought by you more than one year after the date the cause of action has accrued. The language of these Terms, any Attachments and all Orders is English. All contract interpretations, notices and dispute resolutions shall be in English. Translations of any of these documents are not to be construed as official or original versions of the documents.

Certain capitalized terms are defined below, and others are defined contextually in these Terms.

“Account Profile” means any profile or registration information (including profile or information relating to your organization or an individual User) that you or a User provides in the User Account, which may include but not limited to, your organization’s or an individual User’s name, email address and other contact information, username and password, and subscription, Order and payment information.

“Admin” means a personal (who is a User) designated by you to administer any Offerings to Users on your behalf.

“Affiliate” means any entity that directly or indirectly controls or is controlled by, or is under common control with, the party specified. For purposes of this definition, “control” means direct or indirect ownership of more than fifty percent (50%) of the voting interests of the subject entity.

“Cloud Products” means our hosted or cloud-based services and solutions, including any client software we provide as part thereof.

“Confidential Information” means any material or information disclosed by either party to the other party either directly or indirectly, relating to these Terms, in writing, orally or by inspection of tangible objects (including without limitation material or information relating to such party’s research, development, know-how, products, product plans, services, customer, customer lists, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, marketing, finances, or other business information or trade secrets), which is designated as “Confidential,” “Proprietary” or some similar designation, or information the confidential or proprietary nature of which is reasonably apparent under the circumstances. Confidential Information shall not include information which (a) becomes a part of the public domain through no act or omission of recipient; (b) was in recipient’s lawful possession prior to the disclosure by discloser and had not been subject to limitations on disclosure or use, as shown by recipient’s files existing at the time of disclosure; (c) is independently developed by recipient’s employees or independent contractors who have not had access to the Confidential Information; or (d) is lawfully disclosed hereafter to recipient, without restriction, by a third party who did not acquire the information directly or indirectly from discloser.

“Consultants” means your representatives, consultants, contractors, agents or other third parties who use or access the Offerings solely on your behalf as necessary to provide services to you.

“Customer” means a customer for your testing services and the resulting outpoint and who has a separate subscription to the applicable Offerings that you are providing such customer support therewith.

“Documentation” means our standard published documentation for the Offerings, including any usage guides and policies, currently located here.

“Laws” means all applicable local, state, federal and international laws, regulations and conventions, including those related to data privacy and data transfer, international communications and the exportation of technical or personal data.

“Offerings” means the products and services made available by us on or through the Software or Cloud Products (including without limitations, the Trial Services and Pre-Released Services), as designated on an Order and within the Scope of Use.

“Order” means our applicable online order form(s), flows, in-product screens or other ordering document or process approved by us that specifies, as applicable, mutually agreed upon (a) Offerings you are ordering from us (either directly by you or indirectly through a Reseller in accordance to your Reseller Agreement), (b) Scope of Use, and (c) (for a paid Order) the amount or rate you will be charged, the billing and renewal terms, applicable currency, and form of payment.

“Reseller” means a reseller, distributor or partner authorized by us in writing to resell or offer Offerings to you, in the case where you purchase such Offerings from such authorized reseller, distributor or partner.

“Scope of Use” means your authorized scope of use of an applicable Offering in compliance with the applicable Documentation and as designated on an Order, which may include (as applicable): (a) Subscription Terms, (b) number and type of Users or organizations, (c) numbers of licenses, copies, instances, nodes, executions or parallel execution sessions, (d) usage metrics, usage limits, data retention period, or other scope of use parameters, or (e) entity, division, business unit, website, field of use or other restrictions or billable units.

“Software” means our commercially available downloadable software products, including mobile applications of such products. Your Order will specify the Software that you may use.

“Subscription Term” means your permitted subscription period for a subscription-based Offering designated on an Order and any renewal thereof.

“Taxes” means any applicable taxes, levies, duties, or other similar exactions imposed by a legal, governmental, or regulatory authority in any applicable jurisdiction, including, without limitation, sales, use, value-added, consumption, communications, or withholding taxes.

“Test Content” means test scripts, records and other test data you send to or create and store in the Offerings, including the testing project name and date, test execution results (log, image, video) and reports, and execution environment information.

“User Account” means an account that contains an Account Profile, established by you or a User to enable the User to use or access the Offerings.

“Users” means the specific natural persons that are your employees or Additional Users, whom you permit and invite to use the applicable Offerings for your benefit or as otherwise permitted for such Additional Users, and for whom you have paid the required fees (as applicable).

“Your Data” means your Test Content, Account Profiles, and any data, content, code, video, images or other materials of any type that you (including any of your Users) submit, upload or transmit to, or otherwise make available on, the Offerings.

If you use any of the Offerings below, these Additional Customer Terms (“Additional Terms”) will apply with respect to such Offerings, in addition to the Customer Terms of Use (the “Customer Terms”, the Customer Terms together with the Additional Terms shall hereafter be referred to as this “Agreement”). All defined terms used herein but not otherwise defined, shall have the meanings given to them in the Customer Terms.

If you purchase or otherwise use Software as part of the Offerings, you agree to comply with these additional restrictions:

• Upon termination of any Order for the Software for any reason, you will promptly at our option either return or destroy all copies of the Software and any related Documentation in your possession or control.
• Unless otherwise specified in an Order, for each Software license that you purchase, you may install one (1) production instance of the Software on systems owned or operated by you or one of your Users.
• Use of the Software is limited to use in object-code form only. With respect to your use of the Software for Customers as permitted in the Agreement, you may not provide access or use of your copies of the Software to the Customers or include the Software as part of a product, service or other offering you provide to the Customers. In addition, you must verify that each Customer has its own copy of the Software.
• Except for the limited rights expressly granted in this Agreement, we reserve all rights, title and interest in and to the Software, including all related intellectual property rights. No rights are granted to you hereunder other than as expressly set forth above in this Agreement. Without limiting the generality of the foregoing, you may not (a) distribute outside your organization, sublicense, copy, modify, or publicly display the Software, (b) use on behalf of any third party, or permit any third party to use, the Software (except for the limited use for Additional Users described in the Customer Terms), (c) decompile or reverse engineer the Software, (d) remove any proprietary rights notices on the Software, or (e) attempt to gain unauthorized access to the Software, interfere with, or otherwise circumvent any security measures or mechanisms to limit your use within the Software. If you believes you are entitled to reverse engineer the Software because of rights that may be granted as a matter of local law, such as the Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs (as amended), then (i) you shall first request the technical information from us, (ii) this technical information may be used only for the purposes of ensuring interoperability and compatibility, and (iii) the technical information will be considered our Confidential Information and treated as such according to this Agreement.
• You acknowledge that the Software may include open source and freeware software and materials licensed from third parties (“Third Party Components”) and that such third parties may be third party beneficiaries to this Agreement with the ability to directly enforce the provisions pertaining to their Third Party Components. You shall comply with the additional license terms, restrictions and conditions (including notices) pertaining to the Third Party Components or which we otherwise makes available to you (“Third Party Terms”). The Third Party Terms may have additional rights and requirements which apply to the Third Party Components and the terms in this Agreement are offered by us alone and do not limit the rights that may be granted in those Third Party Terms. However, you shall notify us before attempting to modify any Third Party Components, and our support, warranty and indemnification obligations (if any) do not apply where Third Party Components has been modified.
• You are solely responsible for ensuring that your systems meet the hardware, software and any other applicable system requirements for the Software as specified in the Documentation. We will have no obligations or responsibility under this Agreement for issues caused by your use of any third-party hardware or software not provided by us.
• At our request, you agree to provide a signed certification that you are using all Software pursuant to the terms of this Agreement, including the Scope of Use. You agree to allow us, or our authorized agent, to audit your use of the Software (including that of your Users). We will provide you with at least ten (10) days advance notice prior to the audit, and the audit will be conducted during normal business hours. We will bear all out-of-pocket costs that we incur for the audit, unless the audit reveals that you have exceeded the Scope of Use. You will provide reasonable assistance, cooperation, and access to relevant information in the course of any audit at your own cost. If you exceed your Scope of Use, we may invoice you for any past or ongoing excessive use, and you will pay the invoice promptly after receipt. This remedy is without prejudice to any other remedies available to us at law or equity or under this Agreement. To the extent we are obligated to do so, we may share audit results with certain of our third-party licensors or assign the audit rights specified herein to such licensors.
• Software identified in an Order as being provided on a “Floating License” basis may be installed and used on any computer within your internal enterprise network. Each Floating License subscription is assigned to one parallel usage session and shared across multiple User Accounts up to a maximum of three User Accounts at a time. Under a Floating License, you may use the applicable Software for the number of concurrent Users equal to the number of Floating License subscriptions purchased.
• Software identified in an Order as being provided on a “Node-Locked License” basis means the applicable Software is tied to one specific Machine. This license applies for physical or virtual Machines with fixed hardware specifications in each execution session. As used herein, a “Machine” means a single computer operated by you on which you may run the Software.
• By default, the Software will operate with online access (including for activation, support and updates). If you operate an instance of the Software offline (with no online access for activation, support or updates) on a Machine within your enterprise environment (“Offline Mode”), then the following terms apply:
  For Node-Locked Licenses. If you purchase a subscription to the Software under Node-Locked Licenses with Offline Mode, then any User may convert the User’s subscription access to Offline Mode. The User will submit into the subscription manager portion of the User Account the Machine ID of the Machine on which you will install the Software and obtain a license key from us in order to activate your copy of the Software on that Machine. Each instance of the Software in Offline Mode will count as a User’s subscription as part of the subscriptions for which you have paid. The Offline Mode for the applicable Software instance will expire 60 days from the date the User’s subscription is first put into Offline Mode (or the end of the Subscription Term, if that happens earlier).
  For Floating Licenses. If you purchase and deploy Floating Licenses for the applicable Software with Offline Mode, you must download and install the Katalon License Server to manage and track subscriptions. You will indicate to us the number of parallel usage sessions that will be conducted in Offline Mode. In such case, subject to the terms and conditions of this Agreement, we grant you a non-exclusive, nontransferable, non-sublicensable license to use the Katalon License Server solely as necessary to manage and track the subscriptions of the Software, as applicable. You will permit us to remotely access the Katalon License Server twice per year or provide us with a server-generated report from the Katalon License Server in the format specified by us, in each case so that we can verify usage is within the purchased subscription.

If you purchased the Offerings from a Reseller, then to the extent there is any conflict between this Agreement and the agreement entered between you and the respective Reseller, including any purchase order (“Reseller Agreement”), then, as between you and us, this Agreement shall prevail. Any rights granted to you in such Reseller Agreement which are not contained in, or consistent with, this Agreement, apply only in connection with the Reseller. In that case, you must seek redress or realization or enforcement of such rights solely with the Reseller and not us. The Reseller is not authorized to modify this Agreement or make any promises or commitments on our behalf, and we are not bound by any obligations to you other than as set forth in this Agreement. These additional terms shall apply to your use of the Offerings through a Reseller:

• Your Reseller may also be added as an Additional User, provided that your Reseller is permitted to use the Offerings solely on your behalf as necessary for such Reseller to provide you services.
• The fees and subscription number/type for the Offerings will be set forth in the Reseller Agreement between you and the Reseller.
• You and your Users’ access to the Offerings is subject to our receipt from such Reseller of the payment of the applicable fees paid by you to the Reseller. You hereby acknowledge that at any time, at our discretion, the billing of the fees for your use of the Offerings purchased through a Reseller may be assigned to us, such that you shall pay us directly the respective fees. We may suspend or terminate your rights to use the Offerings if we do not receive the corresponding payment from the Reseller.
• Instead of an Order with us, your order details (e.g., the Offerings, Subscription Term, and Scope of Use) will be as stated in the Order placed with us by the Reseller on your behalf, and the Reseller is responsible for the accuracy of any such Order as communicated to us.
• If you are entitled to a refund under this Agreement, then unless otherwise specified by us, we will refund any applicable fees to the Reseller and the Reseller will be solely responsible for refunding the appropriate amounts to you.

We may offer, from time to time, part or all of our products and services on the Offerings on a free, no-obligation trial version (“Trial Services”). The term of the Trial Services shall be as communicated to you within the Offerings or in an Order, unless terminated earlier by either you or us, for any reason or for no reason. We reserve the right to modify, cancel and/or limit any Trial Services at any time and without liability or explanation to you.

Trial Services of Katalon Studio. Trial Services for Katalon Studio that are not otherwise restricted by usage limit, are limited to one user for individual use only and not on behalf of any organization, and “you” as used in this Agreement for such Trial Services, means you as an individual natural person.

Pre-Released Services. We may offer, from time to time, certain products or services on our Offerings in an Alpha or Beta versions or otherwise still under development (the “Pre-Released Services”). We use our best endeavors to identify such Pre-Released Services as such. Pre-Released Services may be inoperable or incomplete, and may contain bugs, suffer disruptions and/or not operate as intended and designated, more than usual. We reserve the right to modify, cancel and/or limit any Pre-Released Services at any time and without liability or explanation to you.

Governing Terms of Trial Services and Pre-Released Services. We grant you access and use of the Trial Services and Pre-Released Services subject to this Agreement and within the Scope of Use, provided that notwithstanding anything in this Agreement or elsewhere to the contrary, in respect of Trial Services and Pre-Released Services (a) such services are provided or licensed (as applicable) hereunder on as “As-Is”, “With All Faults”, “As Available” basis, with no warranties, express or implied, of any kind; (b) any indemnity undertaking by us in this Agreement shall not apply; and (c) IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF KATALON, ITS AFFILIATES OR ITS THIRD PARTY SERVICE PROVIDERS, UNDER, OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, EXCEED US$100. We make no promises that any Trial Services and/or Pre-Released Services will be made available to you and/or generally available.

Changes to Terms. We may modify the terms and conditions in this Agreement related to Trial Services and Pre-Released Services from time to time, with notice to you in accordance with the provision on Notices in the Customer Terms or by posting the modified terms on our website. Together with the notice, we will specify the effective date of the modifications. You must accept the modifications to continue using Trial Services or Pre-Released Services. If you object to the modifications, your exclusive remedy is to cease using the Trial Services or Pre-Released Services.

Certain Plugins maybe be included with the Offerings or available on Katalon Store. You must activate any eligible Plugins that you want to use on the Offerings. In addition to this Agreement, if you use Plugins, you are also subject to the Katalon Store and Plugin Terms, which are incorporated herein by reference in their entirety.

Welcome to the Katalon Offerings! Katalon, Inc. and/or its Affiliates (“Katalon”, “we”, “us” or “our”) provide the Offerings subject to the following conditions.

Please review these Customer Terms of Use (these “Terms”) carefully. These Terms are between you and the Katalon entity that owns or operate the Offering that you are using or accessing. “You” or “your” means, unless otherwise indicated, your employer or another entity you represent, as applicable. You hereby represent that (a) you have full legal authority to bind your employer or such entity (as applicable) to these Terms; and (b) after reading and understanding these Terms, you agree to these Terms on behalf of your employer or the respective entity (as applicable), and these Terms shall bind your employer or such entity (as the case may be). PLEASE NOTE THAT YOU ARE DEEMED AS AN AUTHORIZED REPRESENTATIVE OF YOUR EMPLOYER OR AN ENTITY (AS APPLICABLE): (I) IF YOU ARE USING YOUR EMPLOYER OR AN ENTITY’S EMAIL ADDRESS IN REGISTERING AN ACCOUNT TO USE THE OFFERINGS; OR (II) IF YOU ARE AN ADMIN (AS DEFINED BELOW).

If you have a separate written agreement with us for your use of the Offerings, these Terms will not apply to you, unless that written agreement does not cover a particular product or service, in which case, these Terms apply solely to your use of that particular product or service.

A glossary of defined terms is included at the end of these Terms.

Account. You must register for an account with us in order to place Orders or access and use the Offerings. When creating a User Account or when you are added into a User Account, you: (a) agree to provide us with accurate, complete, and current registration information for all Users; (b) acknowledge that it is your and each User’s responsibility to ensure that such User’s password remains confidential and secure; (c) agree that you are fully responsible for all activities that occur under User Accounts; and (d) undertake to promptly notify us in writing if you become aware of any unauthorized access or use of User Accounts and/or any breach of these Terms. We may assume that any communications we receive under User Accounts have been made by you. You will be solely responsible and liable for any losses, damages, liability and expenses incurred by us or a third party, due to any unauthorized usage of the User Account by either you or any other User or third party on your behalf.

Administration. The Offerings allow you to specify Users, including Admins. An Admin may have the ability to make Orders or enable features, products or services (which may incur fees); creating, de-provisioning, monitoring or modifying User Accounts, and setting User usage permissions or subscription renewal options; integrate or disable integration with Plugins and third-party products or services; and managing Your Data by Users or others. You are responsible for whom you allow to become Admins and any actions they take, including as described above. You agree that our responsibilities do not extend to the internal management or administration of the Offerings to you.

Users. Only Users may access and use the Offerings. Some Offerings may allow you to designate different types of Users, in which case pricing and functionality may vary according to the type of User. You are responsible for the actions taken by your Users, and the compliance with these Terms by all Users, including what Users do with Your Data, and for all fees incurred by Users (or from adding Users). Any Offerings identified in an Order as being provided on per “user” basis has a specific natural person associated with each subscription, who must be identified in the User Account, and may not be changed in a manner to circumvent the number of Users permitted. A User associated with a “user” based subscription may access and use the applicable Offerings on any Internet browser and/or computer within your internal enterprise network, provided that only one User is assigned to a User Account and multiple individuals may not share the same User Account.

Access to Offerings. Subject to these Terms and during the applicable Subscription Term, you are granted a non-exclusive, non-sublicensable and non-transferable right for Users to access and use the Offerings for (a) your internal business purposes for your and your Affiliates’ benefits, and (b) the internal business purposes of your Customers as part of the services that you provide to them, as applicable.

Use by Your Affiliates, Contractors, Customers and Reseller. You are only permitted to add your Affiliates, Contractors, and Customers as Users (“Additional Users”) to access and use the Offerings, provided that:

• Use by each of your Additional Users are subject to these Terms, and you remain responsible for each of your Additional Users’ compliance with these Terms;
• Contractors are permitted to use the Offerings solely on your behalf as necessary to provide services to you; and
• Customers are permitted to use the Offerings as part of the services that you provide to them in respect to your products and services.

Ownership and General Restrictions. As between the parties, we exclusively own and reserves all right, title, and interest in and to the Offerings, the Documentation, and our Confidential Information. As between the parties, you exclusively own and reserve all right, title, and interest in and to your Confidential Information and Your Data, subject to our rights to process Your Data in accordance with these Terms. Except for the limited rights expressly granted above, we reserve all rights, title and interest in and to the Offerings, including all intellectual property rights therein. No rights are granted to you hereunder other than as expressly set forth above in these Terms. Without limiting the generality of the foregoing, except as otherwise expressly permitted in these Terms, you will not (a) use the Offerings for the benefit of any third party, or permit any third party to use the Offerings (other than as expressly permitted with respect to your Additional Users), (b) reproduce, modify, adapt or create derivative works of the Offerings, (c) reverse engineer, disassemble, decompile, translate or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to the Offerings, except to the extent expressly permitted by applicable law (and then only upon advance notice to us), (d) remove or obscure any proprietary or other notices on the Offerings, (e) attempt to gain unauthorized access to the Offerings, interfere with, or otherwise circumvent any security measures or mechanisms intended to limit your use within the Offerings, (f) use the Offerings for competitive analysis, product benchmark or to build competitive products; (g) publicly disseminate information regarding the performance of any products or services on the Offerings; (h) use the Offerings to transmit or store any malicious code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses; or (i) encourage or assist any third party to do any of the foregoing.

Fees. Unless otherwise set forth on an Order, you will be charged the applicable rates available at https://www.katalon.com/pricing or as otherwise made available on the Offerings. You agree to pay us the fees for the Offerings. Unless otherwise set forth in an applicable Order, payment shall be due within thirty (30) days of receipt of our invoice and shall be made in United States dollars, and invoices may be submitted through your Admin’s User Account or via email to the email address(es) you designate in your Admin’s User Account. Subject to any payment dispute (below), payment obligations are non-cancelable and all fees, once paid, are non-refundable. You agree (a) that any and all discounts, incentives and promotional pricings offered to you are conditioned upon your timely payments of all fees due hereunder; (b) that if you default on any payment, all unpaid fees for your Subscription Term shall be accelerated so that such unpaid fees are immediately due and payable; and (c) to pay a late charge of one and one-half percent (1.5%) per month (or part of a month), or the maximum lawful rate permitted by applicable law, whichever is less, for all amounts, not subject to a good faith dispute (below), and not paid when due. We may suspend the provision of the Offerings to any and all of your User Accounts until all fees due are paid in full. You are prohibited from creating new accounts until all fees due are paid in full.

Taxes. All fees are exclusive of Taxes. You will pay all Taxes associated with these Terms, excluding any taxes based on our net income, property, or employees. If you are required by applicable law to withhold any Taxes from payments owed to us, you will reduce or eliminate such withheld Taxes upon receipt of the appropriate tax certificate or document provided by us. You will provide us with proof of payment of any withheld Taxes to the appropriate authority. Taxes will be shown as a separate line item on an invoice.

Increasing Usage Limits. You may add users, increase limits, or otherwise increase the Scope of Use of the Offerings by placing a new Order or modifying an existing Order, as permitted on the Offerings. Unless otherwise specified in the applicable Order, we will charge you for any increased use at our then-current rates, prorated for the remainder of the then-current Subscription Term.

Payment Disputes. You will notify us in writing within thirty (30) days of the date we bill you for any fees that you wish to dispute. Where you are disputing any fees, you must act reasonably and in good faith and will cooperate diligently with us to resolve the dispute. We will not charge you a late fee or suspend the provision of the Offerings for unpaid fees that are in dispute, unless you fail to cooperate diligently with us, or we determine the dispute is not reasonable or not brought in good faith by you.

Test Content. As between the parties, you retain all right, title and interest (including any and all intellectual property rights) in and to your Test Content and any modifications made thereto in the course of the operation of the Offering. You grant us and our Affiliates the right to copy, display, modify, store, use and process your Test Content to provide services and to enable you to use the Offerings in a manner that is consistent with these Terms. You are responsible for the quality and integrity of your Test Content. You are solely responsible for the accuracy, content and legality of all your Test Content. You represent and warrant that you have sufficient rights in your Test Content to grant the rights granted to us hereunder and that your Test Content does not infringe or violate the intellectual property, publicity, privacy or other rights of any third party. You agree not to upload to the Offerings (a) any patient, medical or other protected information regulated by HIPAA or any similar federal or state laws, rules or regulations or (b) any financial or accounting data or payment information, other than your credit card information for account payment processing of the fees, which is processed and stored by our third-payment payment service provider and not processed or stored by us.

Removals and Suspension. We have no obligation to monitor any content uploaded to the Offerings. Nonetheless, if we deem such action necessary based on your violation of these Terms or in response to takedown requests for violations of third-party intellectual property rights, we may remove Your Data from the Offerings and/or suspend your access to the Offerings. We will use reasonable efforts to provide you with advance notice of removals and suspensions when practicable, but if we determine that your actions endanger the operation of the Offerings or other users, we may suspend your access or remove you’re your Data immediately without notice. We have no liability to you for removing or deleting you’re your Data from or suspending your access to any Offerings.

Non-Use and Nondisclosure. Each party shall treat as confidential all Confidential Information of the other party, shall not use such Confidential Information except to exercise its rights and perform its obligations under these Terms, and shall not disclose such Confidential Information to any employee or third party, except to those Users, employees, advisors or representatives of the recipient who are under a contractual or fiduciary duty of confidentiality similar in content to the provisions hereof and whom the recipient will remain responsible for hereunder (“Representatives”) and who are required to have access to such Confidential Information in order to perform the obligations under these Terms. Without limiting the foregoing, each of the parties shall use at least the same degree of care it uses to prevent the disclosure of its own confidential information of like importance, which care shall be no less than reasonable care, to prevent the disclosure of Confidential Information of the other party.

Exceptions. The receiving party may disclose Confidential Information of the disclosing party if so required pursuant to a regulation, law, subpoena, or court order (collectively, “Compelled Disclosures”), provided the receiving party gives the disclosing party notice of a Compelled Disclosure (to the extent legally permitted). The receiving party will provide reasonable cooperation to the disclosing party in connection with a Compelled Disclosure at the disclosing party’s sole expense.

Feedback. You may provide suggestions, feedback and other information to us regarding possible improvements in the operation, functionality or use of the Offerings (“Feedback”). We have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Offerings and related systems and technologies, including without limitation operating speed, memory usage, throughput, bandwidth, errors and error rates, user logins, feature usage, performance data, and other information reasonably necessary to confirm that you and your Users are complying with license usage restrictions (“Usage Data”). You hereby grants us the perpetual, irrevocable, sublicensable right to use, copy, modify, create derivative works of and otherwise fully exploit (a) Usage Data and the Feedback to improve the operation, functionality or use of our existing and future offerings and commercializing such offerings; (b) the Usage Data to publish aggregated statistics about product quality, provided that no data in any such publication can be used to specifically identify you or your Users; and (c) the Usage Data to confirm that you are complying with license usage restrictions.

Changes to these Terms. We may modify the terms and conditions of these Terms from time to time, with notice to you in accordance with the provision on Notices below or by posting the modified Terms on our website; provided however, any modifications to these Terms will take effect at the next renewal of your Subscription Term and will automatically apply as of the renewal date unless you elect not to renew. Notwithstanding the foregoing, in some cases (e.g., to address compliance with Laws, or as necessary for new features) we may specify that such modifications become effective during your then-current Subscription Term. If the effective date of such modifications is during your then-current Subscription Term and you object to the modifications, then (as your exclusive remedy) you may terminate your affected Orders upon notice to us, and we will refund to you any fees you have pre-paid for use of the affected Offering for the terminated portion of the applicable Subscription Term. To exercise this right, you must provide us with notice of your objection and termination within thirty (30) days of us providing notice of the modifications. For the avoidance of doubt, any Order is subject to the version of these Terms in effect at the time of the Order.

Term. These Terms will commence upon your acceptance of an Order, your creation or access to a User Account, or your download, installation, activation or use of the Offerings and will remain in effect until otherwise terminated as set forth below.

Termination. A party may terminate any Order if the other party commits any material breach of such Order (or the provisions of these Terms applicable to the particular Order) and does not remedy the material breach within thirty (30) days after the date that it receives notice of the breach. These Terms may be terminated by either party immediately upon written notice, in the event that: (a) the other party files a petition, in bankruptcy, seeking any reorganization, arrangement, composition, or similar relief under any law regarding insolvency or relief for debtors, or makes an assignment for the benefit of creditors; (b) a receiver, trustee, or similar officer is appointed for the business or property of such party; or (c) the other party adopts a resolution for discontinuance of its business or for dissolution. We may terminate these Terms or any Orders in the event you fail to make any payments of fees when such payments are due. Termination of an Order shall not be deemed a termination of these Terms. Termination of these Terms shall, however, terminate all outstanding Orders. Either party may also terminate these Terms upon no less than thirty (30) days’ prior written notice to the other party for any reason, if at such time there are no outstanding Orders then currently in effect.

Suspension of the Offerings. We may suspend use of the Offerings immediately upon notice to you for cause if we, in good faith, determines: (a) that you or your Users materially breach (or we, in good faith, believes that you or your Users have materially breached) any provision of these Terms, and such breach violates a third party right or materially impacts the performance of the Offerings or other users’ enjoyment of the Offerings; (b) there is an unusual and material spike or increase in your use of the Offerings and that such traffic or use is fraudulent or materially and negatively impacting the operating capability of any products or services on the Offerings; (c) that our provision of the products or services on the Offerings is prohibited by applicable law or regulation; (d) there is any use of the Offerings by you or your Users that threatens the security, integrity, or availability of the Offerings; or (e) that information in your User Account or User Accounts of your Users are untrue, inaccurate, incomplete or otherwise fraudulent. You remain responsible for all fees.

Subscription Auto-Renewal. To ensure that you will not experience any interruption or loss of services, your Offerings include an automatic renewal option by default, according to which, unless you disable the auto-renewal option or cancel your subscription prior to its expiration, the subscription will automatically renew upon the end of the then applicable Subscription Term for a period of like term. You will provide any notice of non-renewal through the means we designate, which may include account settings on the Offerings or contacting our support team. Cancelling your subscription means that you will not be charged for the next billing cycle, but you will not receive any refunds or credits for amounts that have already been charged. Unless specified in an applicable Order, all renewals (a) are subject to the applicable products or services continuing to be offered on the Offerings, (b) will be charged at the then-current prices for the applicable Offerings, (c) will exclude any discount or other promotions offered during the prior Subscription Term, and (d) are subject to any changes in usage policies, usage limits or other Scope of Use. You agree that we may bill your credit card or other payment method for renewals, additional users, overages to set limits or Scopes of Use, expenses, and unpaid fees, as applicable. Either party may elect to not renew an Order by giving the other party at least thirty (30) days’ written notice to terminate such Order before the beginning of the next Subscription Term for such Order, and such termination shall be effective at the end of the then current Subscription Term.

Effect of Termination. Upon any termination or expiration of these Terms or any applicable Order, we shall no longer provide the applicable Offerings to you, and you shall promptly cease and cause your Users to promptly cease using the applicable Offerings. Upon termination of these Terms, each party shall promptly return or destroy all Confidential Information of the other party in its possession, except that each party may keep a copy of the other party’s Confidential Information for archival purposes, or otherwise in accordance with their respective internal recordkeeping procedures, or in compliance with applicable Laws, and will not be required to delete or destroy any copies maintained in its normal-course back-up media. After termination of any Order, we will have no obligation to store and/or make available Your Data for the applicable Offerings, and we may delete the same. All rights and obligations of the parties which by their nature are reasonably intended to survive such termination or expiration will survive termination or expiration of these Terms and each Order.

Offering Warranty. We warrant that during the Subscription Term, the Offerings will conform, in all material respects, with the Documentation. Such warranty shall only apply if the Offerings have been utilized by you in accordance with the Order, the Documentation, and these Terms. For any breach of our representation and warranty, your exclusive remedies are those described in the “Termination” section.

Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, WE MAKE NO, AND DISCLAIMS ALL, WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WE DO NOT REPRESENT OR WARRANT THAT THE OFFERINGS WILL BE ERROR-FREE OR THAT THE OFFERINGS WILL MEET YOUR OR YOUR USERS’ REQUIREMENTS OR THAT ALL ERRORS IN THE OFFERINGS WILL BE CORRECTED, AND WE MAKE NO WARRANTIES AND DISCLAIM ALL WARRANTIES WITH RESPECT TO ANY THIRD-PARTY COMPONENTS OR APPLICATIONS. THE WARRANTIES STATED IN THIS SECTION ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY US. Without limiting the foregoing, you agree that we shall have no liability for errors or omissions in the output of the Offerings, such outputs including, without limitation, the quality or accuracy of any screen displays or reports, in the transmission and reception of data, or in the processing of such data by the Offerings. You agree that any use or purchase of our products or services shall not be contingent on the delivery of any future functionality or features, or dependent on any oral or written comments we make regarding future functionality or features.

Our Indemnification. We will defend you, your Affiliates and their respective officers, directors, employees and agents (collectively, the “Customer Indemnitees”), against any claim, demand, suit or proceeding made or brought against any of the Customer Indemnitees by a third party alleging that the Offerings infringe or misappropriate such third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify the Customer Indemnitees from any damages (including reasonable attorney fees and costs) finally awarded against any of the Customer Indemnitees as a result of, or for amounts paid under a court-approved settlement of, a Claim Against Customer. If a Claim Against Customer is brought or is likely, in our sole opinion, to be brought, we will, at our option and expense (a) obtain the right for you to continue using the Offering; (b) replace or modify the affected Offering so that it becomes non-infringing; or (c) upon notice to you, terminate these Terms or your use of the affected Offerings, provided that in the case of subsection (c) we will promptly refund to you the prorated portion of any unearned pre-paid subscription fees paid hereunder for the affected Offerings. Our obligations in this section do not cover third party claims to the extent such claims arise from: (i) any products, services, technology, materials or data created or provided by a party other than us (including without limitation Your Data), (ii) any part of the Offerings made in whole or in part in accordance to your specifications, (iii) any modifications not made by us, (iv) any combination with other products, processes or materials not provided by us (where the alleged damages, costs or expenses arise from or relate to such combination), (v) where you continue the allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) your use of the Offerings not strictly in accordance with these Terms, the Scope of Use or any Documentation ((i) through (vi), the “Excluded Claims”).

Your Indemnification. You will defend us, our Affiliates and their respective officers, directors, employees and agents (collectively, the “Katalon Indemnitees”) against any claim, demand, suit or proceeding made or brought against any or all of the Katalon Indemnitees by a third party arising out of or attributable to the Excluded Claims, and will indemnify the Katalon Indemnitees from any damages, reasonable attorney fees and costs finally awarded against the Katalon Indemnitees as a result of, or for any amounts paid under a court-approved settlement of an Excluded Claim.

Indemnification Procedure. Each party’s obligation to indemnify the other party is conditioned on the party seeking indemnification: (a) promptly notifying the indemnifying party in writing of any claim, suit or proceeding for which indemnity is claimed, provided that failure to so notify will not remove the indemnifying Party’s obligation except to the extent it is prejudiced thereby, (b) allowing the indemnifying party to solely control the defense of any claim, suit or proceeding and all negotiations for settlement; provided that the indemnifying party shall not settle any claim that requires the indemnified party to admit fault without the indemnified party’s prior written consent (such consent not to be unreasonably withheld or delayed), and (c) giving the indemnifying party reasonable assistance in the defense and settlement of any claim, suit or proceeding for which indemnity is claimed.

Sole Remedy. The foregoing indemnity obligations state the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this section.

Limitation of Liability. EXCEPT FOR EACH PARTY’S VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS AND EACH PARTY’S INDEMNIFICATION OBLIGATIONS ABOVE, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY UNDER THESE TERMS OR OTHERWISE, REGARDLESS OF THE FORM OF CLAIM OR ACTION, IN AN AMOUNT THAT EXCEEDS THE FEES YOU HAVE PAID FOR THE OFFERINGS UNDER THE APPLICABLE ORDER IN THE PRECEDING 12 MONTHS. EXCEPT FOR EACH PARTY’S VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT WILL A PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES OR COSTS (INCLUDING WITHOUT LIMITATION, LOSS OF GOODWILL OR PROFIT, BUSINESS INTERRUPTION, LOSS OF BUSINESS) IN CONNECTION WITH THE OFFERINGS OR THESE TERMS, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS.

Assignment. Neither these Terms nor any rights or obligations under these Terms may be assigned or otherwise transferred by either party without the prior written consent of the other party; provided that, such prior written consent is not required for any assignment by either party to its Affiliates or to any successor of substantially all of its business or assets to which these Terms relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. These Terms shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.

Governing Law. These Terms shall be governed by the laws of the State of Georgia, USA, without regard to the conflicts of law provisions of any jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms. To the extent that any lawsuit is permitted under these Terms, the parties hereby expressly consent to the personal and exclusive jurisdiction and venue of the state and federal courts located in Fulton County, Georgia, USA (to the extent not addressed by arbitration below, if any).

Dispute Resolution. In the event of any dispute, claim, or controversy in connection with these Terms (collectively, “Disputes”), each party’s senior representatives will, in good faith, attempt to resolve the Dispute. If the parties are unable to resolve the Dispute within thirty (30) days or within such other time period as the parties may agree in writing, then the parties may commence binding arbitration under JAMS’ Comprehensive Arbitration Rules and Procedures. The parties will share equally the fees and expenses of the JAMS arbitrator. The arbitration will be conducted by a sole arbitrator mutually agreed to between the parties or, failing that, by JAMS under its then prevailing rules. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The arbitrator will have the authority to grant specific performance or any other equitable or legal remedy, including provisional remedies. Each party will be responsible for its own incurred expenses arising out of any dispute resolution procedure. Any arbitration proceedings will take place in Fulton County, Georgia, USA.

Injunctive Relief. Nothing contained in these Terms shall deny either party the right to seek immediate injunctive or other equitable relief from a court of competent jurisdiction: (a) in the context of a bona fide emergency or prospective irreparable harm to preserve the status quo pending resolution of a dispute between the parties or (b) where a party alleges or claims a violation of any agreement regarding intellectual property, confidential information or noninterference. Such an action may be filed and maintained notwithstanding any ongoing discussions between the parties or any ongoing arbitration proceeding.

Additional Customer Terms. Additional terms and conditions specific to certain products and services in the Offerings are set forth in the Addendum (the “Additional Customer Terms”). If you use any of the Offerings described in the Additional Customer Terms, the Additional Customer Terms will apply with respect to such Offerings, in addition to these Terms, and such Additional Customer Terms are incorporated herein by reference in their entirety.

Notice. All notices, consents and other communications hereunder shall be provided in writing and shall be delivered personally or by email or registered or certified mail (return receipt requested) to the parties at the addresses set forth on any Orders or in any User Account (or such other address as may have been furnished by or on behalf of such party by like notice); provided that, for any notices sent to us, a copy of the notice will be sent to legal@katalon.com. We may provide notice to you using your User Account or in-product notifications, or to your Admin contact information, including your Admin’s email address. You agree that any electronic communication will satisfy any applicable legal communication requirements, including that such communications be in writing. Communications sent by email shall be deemed delivered upon dispatch. Communications sent by registered or certified mail shall be deemed delivered upon receipt.

Publicity Rights. You agree that we may identify you as a customer and use your name, logo and a description of your use case on our website and in marketing and promotional materials, subject to your standard trademark usage guidelines that you provide to us. We will promptly stop doing so upon your request sent to legal@katalon.com.

Export Compliance. The Offerings may be subject to export laws and regulations of the United States and other jurisdictions. You represent that you and your officers, directors and other principals are not named on any U.S. government denied-party list. You shall not use or export the Offerings in violation of any U.S. export law or regulation.

U.S. Government End-Use Provisions. The following applies to all acquisitions of the Offerings and Documentation by or for the U.S. government or by any prime contractor or subcontractor under any contract, grant or other activity with the U.S. government. The Offerings and Documentation and services utilizing the Offerings and Documentation provided under these Terms are “commercial items” as that term is defined at 48 C.F.R. 2.101 consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and other applicable acquisition regulations and are provided to the U.S. Government only as a commercial item. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202, all U.S. Government users and licensees acquire the Offerings and its associated services and Documentation with only those rights and subject to the restrictions set forth in these Terms. Notwithstanding the foregoing, the Offerings and its associated services and Documentation may not be acquired by the U.S. government pursuant to a contract incorporating clauses prescribed by FAR Subpart 27.4 or DFARS Subpart 227.4.

Force Majeure. Nonperformance of either party, except for the making of payments, shall be excused to the extent that performance is rendered impossible by strike, fire, flood, earthquake, governmental acts or orders or restrictions, cyber-attacks, information security and data breaches caused by third parties, failure of cloud services, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of such party (collectively, “Force Majeure Events”). The party affected by a Force Majeure Event will take all reasonable actions to minimize the consequences of any such event.

Entire Agreement; Amendment. These Terms together with the Orders, and any attachments, schedules, exhibits and addenda (including without limitations, the Additional Customer Terms) referenced herein (the “Attachments”) constitute the entire agreement between the parties regarding the subject matter hereof. All prior or contemporaneous agreements, proposals, understandings, and communications between the parties regarding the subject matter hereof, whether oral or written, are superseded by and merged into these Terms. No modification or amendment to these Terms, nor any Attachment or Order, will be binding unless by an agreement in a writing signed by both parties that specifically references and clearly states the intention to amend these Terms, such Attachment or such Order, as applicable. Any terms and conditions set forth in an Order shall solely be applicable to such Order and shall not affect any other Orders between the parties. In the event of any conflict between these Terms and those of any Order or Attachment, these Terms will control (unless such Order or Attachment is intended to control), and the terms of an Order, an Attachment, and these Terms will prevail over any conflicting provision in any purchase order or any other instrument regardless of execution by the parties. You may not use a purchase order or other instrument not issued by us to modify or add to these Terms, and all such attempted modifications or additions to these Terms in any such purchase order or instrument shall be void and of no effect, even if accepted or signed by both parties. Any purchase orders that are accepted by us are accepted expressly subject to these Terms without regards to any additional or conflicting terms therein.

Other Miscellaneous Terms. The relationship between the parties to these Terms is and shall be that of independent contractors. It is expressly agreed that nothing in these terms shall be construed to create or imply a partnership, joint venture, agency relationship or contract of employment. There are no third-party beneficiaries to these Terms. Any waiver of the provisions of these Terms or of a party’s rights or remedies under these Terms must be in writing referencing these Terms to be effective. Failure, neglect, or delay by a party to enforce the provisions of these Terms or its rights or remedies at any time shall not be deemed to be a waiver of such party’s rights under these Terms and shall not prejudice such party’s right to take subsequent action. A party’s waiver of the performance of any covenant or any breach is not to be construed as a waiver of any succeeding breach or of any other covenant. If any term, condition, or provision in these Terms is found to be invalid, unlawful or unenforceable to any extent, the invalid, unlawful or unenforceable term, condition or provision shall be severed from the remaining terms, conditions and provisions, which shall continue to be valid and enforceable to the fullest extent permitted by law. No action arising out of these Terms, regardless of form, may be brought by you more than one year after the date the cause of action has accrued. The language of these Terms, any Attachments and all Orders is English. All contract interpretations, notices and dispute resolutions shall be in English. Translations of any of these documents are not to be construed as official or original versions of the documents.

Certain capitalized terms are defined below, and others are defined contextually in these Terms.

“Account Profile” means any profile or registration information (including profile or information relating to your organization or an individual User) that you or a User provides in the User Account, which may include but not limited to, your organization’s or an individual User’s name, email address and other contact information, username and password, and subscription, Order and payment information.

“Admin” means a personal (who is a User) designated by you to administer any Offerings to Users on your behalf.

“Affiliate” means any entity that directly or indirectly controls or is controlled by, or is under common control with, the party specified. For purposes of this definition, “control” means direct or indirect ownership of more than fifty percent (50%) of the voting interests of the subject entity.

“Cloud Products” means our hosted or cloud-based services and solutions, including any client software we provide as part thereof.

“Confidential Information” means any material or information disclosed by either party to the other party either directly or indirectly, relating to these Terms, in writing, orally or by inspection of tangible objects (including without limitation material or information relating to such party’s research, development, know-how, products, product plans, services, customer, customer lists, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, marketing, finances, or other business information or trade secrets), which is designated as “Confidential,” “Proprietary” or some similar designation, or information the confidential or proprietary nature of which is reasonably apparent under the circumstances. Confidential Information shall not include information which (a) becomes a part of the public domain through no act or omission of recipient; (b) was in recipient’s lawful possession prior to the disclosure by discloser and had not been subject to limitations on disclosure or use, as shown by recipient’s files existing at the time of disclosure; (c) is independently developed by recipient’s employees or independent contractors who have not had access to the Confidential Information; or (d) is lawfully disclosed hereafter to recipient, without restriction, by a third party who did not acquire the information directly or indirectly from discloser.

“Consultants” means your representatives, consultants, contractors, agents or other third parties who use or access the Offerings solely on your behalf as necessary to provide services to you.

“Customer” means a customer for your testing services and the resulting outpoint and who has a separate subscription to the applicable Offerings that you are providing such customer support therewith.

“Documentation” means our standard published documentation for the Offerings, including any usage guides and policies, currently located here.

“Laws” means all applicable local, state, federal and international laws, regulations and conventions, including those related to data privacy and data transfer, international communications and the exportation of technical or personal data.

“Offerings” means the products and services made available by us on or through the Software or Cloud Products (including without limitations, the Trial Services and Pre-Released Services), as designated on an Order and within the Scope of Use.

“Order” means our applicable online order form(s), flows, in-product screens or other ordering document or process approved by us that specifies, as applicable, mutually agreed upon (a) Offerings you are ordering from us (either directly by you or indirectly through a Reseller in accordance to your Reseller Agreement), (b) Scope of Use, and (c) (for a paid Order) the amount or rate you will be charged, the billing and renewal terms, applicable currency, and form of payment.

“Reseller” means a reseller, distributor or partner authorized by us in writing to resell or offer Offerings to you, in the case where you purchase such Offerings from such authorized reseller, distributor or partner.

“Scope of Use” means your authorized scope of use of an applicable Offering in compliance with the applicable Documentation and as designated on an Order, which may include (as applicable): (a) Subscription Terms, (b) number and type of Users or organizations, (c) numbers of licenses, copies, instances, nodes, executions or parallel execution sessions, (d) usage metrics, usage limits, data retention period, or other scope of use parameters, or (e) entity, division, business unit, website, field of use or other restrictions or billable units.

“Software” means our commercially available downloadable software products, including mobile applications of such products. Your Order will specify the Software that you may use.

“Subscription Term” means your permitted subscription period for a subscription-based Offering designated on an Order and any renewal thereof.

“Taxes” means any applicable taxes, levies, duties, or other similar exactions imposed by a legal, governmental, or regulatory authority in any applicable jurisdiction, including, without limitation, sales, use, value-added, consumption, communications, or withholding taxes.

“Test Content” means test scripts, records and other test data you send to or create and store in the Offerings, including the testing project name and date, test execution results (log, image, video) and reports, and execution environment information.

“User Account” means an account that contains an Account Profile, established by you or a User to enable the User to use or access the Offerings.

“Users” means the specific natural persons that are your employees or Additional Users, whom you permit and invite to use the applicable Offerings for your benefit or as otherwise permitted for such Additional Users, and for whom you have paid the required fees (as applicable).

“Your Data” means your Test Content, Account Profiles, and any data, content, code, video, images or other materials of any type that you (including any of your Users) submit, upload or transmit to, or otherwise make available on, the Offerings.

If you use any of the Offerings below, these Additional Customer Terms (“Additional Terms”) will apply with respect to such Offerings, in addition to the Customer Terms of Use (the “Customer Terms”, the Customer Terms together with the Additional Terms shall hereafter be referred to as this “Agreement”). All defined terms used herein but not otherwise defined, shall have the meanings given to them in the Customer Terms.

If you purchase or otherwise use Software as part of the Offerings, you agree to comply with these additional restrictions:

• Upon termination of any Order for the Software for any reason, you will promptly at our option either return or destroy all copies of the Software and any related Documentation in your possession or control.
• Unless otherwise specified in an Order, for each Software license that you purchase, you may install one (1) production instance of the Software on systems owned or operated by you or one of your Users.
• Use of the Software is limited to use in object-code form only. With respect to your use of the Software for Customers as permitted in the Agreement, you may not provide access or use of your copies of the Software to the Customers or include the Software as part of a product, service or other offering you provide to the Customers. In addition, you must verify that each Customer has its own copy of the Software.
• Except for the limited rights expressly granted in this Agreement, we reserve all rights, title and interest in and to the Software, including all related intellectual property rights. No rights are granted to you hereunder other than as expressly set forth above in this Agreement. Without limiting the generality of the foregoing, you may not (a) distribute outside your organization, sublicense, copy, modify, or publicly display the Software, (b) use on behalf of any third party, or permit any third party to use, the Software (except for the limited use for Additional Users described in the Customer Terms), (c) decompile or reverse engineer the Software, (d) remove any proprietary rights notices on the Software, or (e) attempt to gain unauthorized access to the Software, interfere with, or otherwise circumvent any security measures or mechanisms to limit your use within the Software. If you believes you are entitled to reverse engineer the Software because of rights that may be granted as a matter of local law, such as the Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs (as amended), then (i) you shall first request the technical information from us, (ii) this technical information may be used only for the purposes of ensuring interoperability and compatibility, and (iii) the technical information will be considered our Confidential Information and treated as such according to this Agreement.
• You acknowledge that the Software may include open source and freeware software and materials licensed from third parties (“Third Party Components”) and that such third parties may be third party beneficiaries to this Agreement with the ability to directly enforce the provisions pertaining to their Third Party Components. You shall comply with the additional license terms, restrictions and conditions (including notices) pertaining to the Third Party Components or which we otherwise makes available to you (“Third Party Terms”). The Third Party Terms may have additional rights and requirements which apply to the Third Party Components and the terms in this Agreement are offered by us alone and do not limit the rights that may be granted in those Third Party Terms. However, you shall notify us before attempting to modify any Third Party Components, and our support, warranty and indemnification obligations (if any) do not apply where Third Party Components has been modified.
• You are solely responsible for ensuring that your systems meet the hardware, software and any other applicable system requirements for the Software as specified in the Documentation. We will have no obligations or responsibility under this Agreement for issues caused by your use of any third-party hardware or software not provided by us.
• At our request, you agree to provide a signed certification that you are using all Software pursuant to the terms of this Agreement, including the Scope of Use. You agree to allow us, or our authorized agent, to audit your use of the Software (including that of your Users). We will provide you with at least ten (10) days advance notice prior to the audit, and the audit will be conducted during normal business hours. We will bear all out-of-pocket costs that we incur for the audit, unless the audit reveals that you have exceeded the Scope of Use. You will provide reasonable assistance, cooperation, and access to relevant information in the course of any audit at your own cost. If you exceed your Scope of Use, we may invoice you for any past or ongoing excessive use, and you will pay the invoice promptly after receipt. This remedy is without prejudice to any other remedies available to us at law or equity or under this Agreement. To the extent we are obligated to do so, we may share audit results with certain of our third-party licensors or assign the audit rights specified herein to such licensors.
• Software identified in an Order as being provided on a “Floating License” basis may be installed and used on any computer within your internal enterprise network. Each Floating License subscription is assigned to one parallel usage session and shared across multiple User Accounts up to a maximum of three User Accounts at a time. Under a Floating License, you may use the applicable Software for the number of concurrent Users equal to the number of Floating License subscriptions purchased.
• Software identified in an Order as being provided on a “Node-Locked License” basis means the applicable Software is tied to one specific Machine. This license applies for physical or virtual Machines with fixed hardware specifications in each execution session. As used herein, a “Machine” means a single computer operated by you on which you may run the Software.
• By default, the Software will operate with online access (including for activation, support and updates). If you operate an instance of the Software offline (with no online access for activation, support or updates) on a Machine within your enterprise environment (“Offline Mode”), then the following terms apply:
  For Node-Locked Licenses. If you purchase a subscription to the Software under Node-Locked Licenses with Offline Mode, then any User may convert the User’s subscription access to Offline Mode. The User will submit into the subscription manager portion of the User Account the Machine ID of the Machine on which you will install the Software and obtain a license key from us in order to activate your copy of the Software on that Machine. Each instance of the Software in Offline Mode will count as a User’s subscription as part of the subscriptions for which you have paid. The Offline Mode for the applicable Software instance will expire 60 days from the date the User’s subscription is first put into Offline Mode (or the end of the Subscription Term, if that happens earlier).
  For Floating Licenses. If you purchase and deploy Floating Licenses for the applicable Software with Offline Mode, you must download and install the Katalon License Server to manage and track subscriptions. You will indicate to us the number of parallel usage sessions that will be conducted in Offline Mode. In such case, subject to the terms and conditions of this Agreement, we grant you a non-exclusive, nontransferable, non-sublicensable license to use the Katalon License Server solely as necessary to manage and track the subscriptions of the Software, as applicable. You will permit us to remotely access the Katalon License Server twice per year or provide us with a server-generated report from the Katalon License Server in the format specified by us, in each case so that we can verify usage is within the purchased subscription.

If you purchased the Offerings from a Reseller, then to the extent there is any conflict between this Agreement and the agreement entered between you and the respective Reseller, including any purchase order (“Reseller Agreement”), then, as between you and us, this Agreement shall prevail. Any rights granted to you in such Reseller Agreement which are not contained in, or consistent with, this Agreement, apply only in connection with the Reseller. In that case, you must seek redress or realization or enforcement of such rights solely with the Reseller and not us. The Reseller is not authorized to modify this Agreement or make any promises or commitments on our behalf, and we are not bound by any obligations to you other than as set forth in this Agreement. These additional terms shall apply to your use of the Offerings through a Reseller:

• Your Reseller may also be added as an Additional User, provided that your Reseller is permitted to use the Offerings solely on your behalf as necessary for such Reseller to provide you services.
• The fees and subscription number/type for the Offerings will be set forth in the Reseller Agreement between you and the Reseller.
• You and your Users’ access to the Offerings is subject to our receipt from such Reseller of the payment of the applicable fees paid by you to the Reseller. You hereby acknowledge that at any time, at our discretion, the billing of the fees for your use of the Offerings purchased through a Reseller may be assigned to us, such that you shall pay us directly the respective fees. We may suspend or terminate your rights to use the Offerings if we do not receive the corresponding payment from the Reseller.
• Instead of an Order with us, your order details (e.g., the Offerings, Subscription Term, and Scope of Use) will be as stated in the Order placed with us by the Reseller on your behalf, and the Reseller is responsible for the accuracy of any such Order as communicated to us.
• If you are entitled to a refund under this Agreement, then unless otherwise specified by us, we will refund any applicable fees to the Reseller and the Reseller will be solely responsible for refunding the appropriate amounts to you.

We may offer, from time to time, part or all of our products and services on the Offerings on a free, no-obligation trial version (“Trial Services”). The term of the Trial Services shall be as communicated to you within the Offerings or in an Order, unless terminated earlier by either you or us, for any reason or for no reason. We reserve the right to modify, cancel and/or limit any Trial Services at any time and without liability or explanation to you.

Trial Services of Katalon Studio. Trial Services for Katalon Studio that are not otherwise restricted by usage limit, are limited to one user for individual use only and not on behalf of any organization, and “you” as used in this Agreement for such Trial Services, means you as an individual natural person.

Pre-Released Services. We may offer, from time to time, certain products or services on our Offerings in an Alpha or Beta versions or otherwise still under development (the “Pre-Released Services”). We use our best endeavors to identify such Pre-Released Services as such. Pre-Released Services may be inoperable or incomplete, and may contain bugs, suffer disruptions and/or not operate as intended and designated, more than usual. We reserve the right to modify, cancel and/or limit any Pre-Released Services at any time and without liability or explanation to you.

Governing Terms of Trial Services and Pre-Released Services. We grant you access and use of the Trial Services and Pre-Released Services subject to this Agreement and within the Scope of Use, provided that notwithstanding anything in this Agreement or elsewhere to the contrary, in respect of Trial Services and Pre-Released Services (a) such services are provided or licensed (as applicable) hereunder on as “As-Is”, “With All Faults”, “As Available” basis, with no warranties, express or implied, of any kind; (b) any indemnity undertaking by us in this Agreement shall not apply; and (c) IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF KATALON, ITS AFFILIATES OR ITS THIRD PARTY SERVICE PROVIDERS, UNDER, OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, EXCEED US$100. We make no promises that any Trial Services and/or Pre-Released Services will be made available to you and/or generally available.

Changes to Terms. We may modify the terms and conditions in this Agreement related to Trial Services and Pre-Released Services from time to time, with notice to you in accordance with the provision on Notices in the Customer Terms or by posting the modified terms on our website. Together with the notice, we will specify the effective date of the modifications. You must accept the modifications to continue using Trial Services or Pre-Released Services. If you object to the modifications, your exclusive remedy is to cease using the Trial Services or Pre-Released Services.

Certain Plugins maybe be included with the Offerings or available on Katalon Store. You must activate any eligible Plugins that you want to use on the Offerings. In addition to this Agreement, if you use Plugins, you are also subject to the Katalon Store and Plugin Terms, which are incorporated herein by reference in their entirety.

Welcome to the Katalon Partnership! Katalon, Inc. and/or its Affiliates (“Katalon”, “we”, “us” or “our”) enter into a Partnership with you subject to the following conditions.

Please review the Partnership Registration Form, these Partnership Terms and Conditions, and the Partner Program Terms (collectively, this “Agreement”) carefully. This Agreement is between you and the Katalon entity that owns or operates the Partnership that you are engaging in. “You” or “your” means, unless otherwise indicated, your employer or another entity you represent, as applicable. You hereby represent that (a) you have full legal authority to bind your employer or such entity (as applicable) to this Agreement; and (b) after reading and understanding this Agreement, you agree to this Agreement on behalf of your employer or the respective entity (as applicable), and this Agreement shall bind your employer or such entity (as the case may be). PLEASE NOTE THAT YOU ARE DEEMED AS AN AUTHORIZED REPRESENTATIVE OF YOUR EMPLOYER OR AN ENTITY (AS APPLICABLE) IF YOU ARE USING YOUR EMPLOYER OR AN ENTITY’S EMAIL ADDRESS IN SIGNING OR ENTERING INTO A PARTNERSHIP REGISTRATION FORM.

A glossary of defined terms is included at the end of these Partnership Terms and Conditions.

1.1. Partnership. By signing the Partnership Registration Form, you agree to enter into a partnership with us under this Agreement (subject to the type of partnership you register) (“Partnership”).

1.2. Non-exclusive Agreement. Each party acknowledges that this Agreement does not create an exclusive agreement between the parties. This Agreement shall not in any way restrict either party from working with other third parties to conduct a similar scope of activities under this Agreement.

1.3. Partner. During the term of this Agreement, you shall maintain your eligibility to participate in the partnership with Katalon as provided under the Partner Program Terms. Your conduct under the Partnership shall be for your own account and at your own expense, and except as expressly permitted under this Agreement, you shall not give warranties, assume or create any obligations, enter into contracts or otherwise incur liabilities on the behalf of Katalon.

2.1. Publicity Right. You agree that either party may identify the other party as each other’s partner and use the other party’s name, Marks, or description of our Partnership on its own website, in Marketing Materials, or on other mediums subject to the publicity guidelines agreed by the parties in advance. Each party will promptly stop doing so (a) upon a request sent by the other party, or (b) upon expiration or termination of this Agreement. In this respect, either party shall not conduct anything that is inconsistent with or contrary to the ownership of the other party in its Marks.

2.2. Use of Materials. Subject to the terms of this Agreement, we hereby grant to you a non-exclusive, non-sublicensable, and non-transferable license during the term of this Agreement to (a) use our Marketing Materials for the sole purpose of marketing the Offerings to a Customer in connection with this Partnership, and (b) use the Training Materials for the sole purpose of training on Offerings. Subject to the terms of this Agreement, you hereby grant to Katalon a non-exclusive, non-sublicensable, and non-transferable license during the term of this Agreement to use your Marketing Materials free of any charge for the sole purpose of marketing the Offerings and/or the Partnership to our actual or prospective customer. Neither party shall (i) modify any Materials of the other party (including, but not limited to, any wordings, designs, and Marks contained therein) unless it obtains written approval from the other party, and (ii) continue using the other party’s Materials upon the termination or expiration of this Agreement.

2.3. Non-Production Use. During the Term and subject to the Partner Program Terms, Katalon may provide you a limited portion of an applicable Offering solely for your training, evaluation, integration (if applicable) or demonstration to the Customers under this Partnership. You may not grant any license of the Offerings to your Customers as part of such non-production use.

2.4. Co-Branded Marketing Materials. You may request the creation of co-branded Marketing Materials. Each request will be considered on a case-by-case basis at our discretion. In case we accept the request, the terms and conditions of the co-branded Marketing Materials will be agreed upon in writing by the parties.

3.1. Fees. You shall pay us the fees for the Offering(s) as set forth in the applicable Order. Unless otherwise set forth in an applicable Order, payment shall be due within thirty (30) days of receipt of invoice and shall be made in United States dollars, and invoices may be submitted via email to the email address(es) you designate herein. Subject to any payment dispute (below), payment obligations are non-cancelable and all fees, once paid, are non-refundable. You agree (a) that any and all discounts, incentives, and promotional pricing (if any) offered by Katalon are conditioned upon your timely payments of all fees due hereunder; (b) to pay a late charge of one and one-half percent (1.5%) per month (or part of a month), or the maximum lawful rate permitted by applicable law, whichever is less, for all amounts, not subject to a good faith dispute (below), and not paid when due. Katalon may suspend or terminate the use of the Offerings if we do not receive the payment from you.

3.2. Taxes. All fees are exclusive of Taxes. You will pay all Taxes associated with this Agreement, excluding any taxes based on our net income, property, or employees. If you are required by the applicable law to withhold any Taxes from payments owed to us, you will reduce or eliminate such withheld Taxes upon receipt of the appropriate tax certificate or document provided by us. You will provide us with proof of payment of any withheld Taxes to the appropriate authority. Taxes will be shown as a separate line item on an invoice.

3.3. Payment Disputes. You will notify us in writing within thirty (30) days of the date we bill you for any fees that you wish to dispute. Where you are disputing any fees, you must act reasonably and in good faith and will cooperate diligently with us to resolve the dispute. We will not charge you a late fee or suspend the provision of the Offerings for unpaid fees that are in dispute, unless you fail to cooperate diligently with us, or we determine the dispute is not reasonable or not brought in good faith by you.

4.1. Non-Use and Nondisclosure. Each party shall treat as confidential all Confidential Information of the other party, shall not use such Confidential Information except to exercise its rights and perform its obligations under this Agreement, and shall not disclose such Confidential Information to any employee or third party, except to those employees, advisors or representatives of the recipient who are under a contractual or fiduciary duty of confidentiality similar in content to the provisions hereof and whom the recipient will remain responsible for hereunder (“Representatives”) and who are required to have access to such Confidential Information in order to perform the obligations under this Agreement. Without limiting the foregoing, each of the parties shall use at least the same degree of care it uses to prevent the disclosure of its own confidential information of like importance, which care shall be no less than reasonable care, to prevent the disclosure of Confidential Information of the other party.

4.2. Exceptions. The receiving party may disclose Confidential Information of the disclosing party if so required pursuant to a regulation, law, subpoena, or court order (collectively, “Compelled Disclosures”), provided the receiving party gives the disclosing party notice of a Compelled Disclosure (to the extent legally permitted). The receiving party will provide reasonable cooperation to the disclosing party in connection with a Compelled Disclosure at the disclosing party’s sole expense.

4.3. Feedback. You may provide suggestions, feedback and other information to us regarding possible improvements in the operation, functionality or use of the Offerings (“Feedback”). We have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Offerings and related systems and technologies, including without limitation operating speed, memory usage, throughput, bandwidth, errors and error rates, user logins, feature usage, performance data, and other information reasonably necessary to confirm that you and your Customers are complying with license usage restrictions (“Usage Data”). You hereby grant us the perpetual, irrevocable, sublicensable right to use, copy, modify, create derivative works of and otherwise fully exploit (a) Usage Data and the Feedback to improve the operation, functionality, or use of our existing and future offerings and commercializing such offerings; (b) the Usage Data to publish aggregated statistics about product quality, provided that no data in any such publication can be used to specifically identify you or your Customers; and (c) the Usage Data to confirm that you are complying with the Partner Program Terms.

As between the parties, we exclusively own and reserve all right, title, and interest in and to the Offerings, the Documentation, our Marks, Materials, and Confidential Information, subject to limited rights expressly granted above. As between the parties, you exclusively own and reserve all right, title, and interest in and to your Marks, Materials, and Confidential Information, subject to limited rights expressly granted above. Except for the limited rights expressly granted above, we reserve all rights, title, and interest in and to the Offerings, including all intellectual property rights therein. No rights are granted to you hereunder other than as expressly set forth above in this Agreement. Without limiting the generality of the foregoing, except as otherwise expressly permitted in this Agreement, you will not, and procure that your Customer will not, (a) use the Offerings for the benefit of any third party, or permit any third party to use the Offerings (other than as expressly permitted by us), (b) reproduce, modify, adapt or create derivative works of the Offerings, (c) reverse engineer, disassemble, decompile, translate or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to the Offerings, except to the extent expressly permitted by applicable law (and then only upon advance notice to us), (d) remove or obscure any proprietary or other notices on the Offerings, (e) attempt to gain unauthorized access to the Offerings, interfere with, or otherwise circumvent any security measures or mechanisms intended to limit your use within the Offerings, (f) use the Offerings for competitive analysis, product benchmark or to build competitive products; (g) publicly disseminate information regarding the performance of any products or services on the Offerings; (h) use the Offerings to transmit or store any malicious code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses; or (i) encourage or assist any third party to do any of the foregoing.

6.1. Warranty. Each party represents and warrants that (a) it has all necessary corporate power and authority to enter into this Agreement, and to perform all of its obligations hereunder, and (b) the execution, delivery, and performance of this Agreement will not violate or conflict with any other obligations or agreements to which it is a party.

6.2. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, WE MAKE NO, AND DISCLAIMS ALL, WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WE DO NOT REPRESENT OR WARRANT THAT THE OFFERINGS WILL BE ERROR-FREE OR THAT THE OFFERINGS WILL MEET YOUR OR YOUR USERS’ REQUIREMENTS OR THAT ALL ERRORS IN THE OFFERINGS WILL BE CORRECTED, AND WE MAKE NO WARRANTIES AND DISCLAIM ALL WARRANTIES WITH RESPECT TO ANY COMPONENTS OR APPLICATIONS CREATED OR PROVIDED BY A PARTY OTHER THAN US. THE WARRANTIES STATED IN THIS SECTION ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY US. You agree that any use or purchase of our Offerings shall not be contingent on the delivery of any future functionality or features, or dependent on any oral or written comments we make regarding future functionality or features.

7.1. Export Control. The Offerings may be subject to export laws and regulations of the United States and other jurisdictions. You will comply with all export control and anti-boycott laws and regulations of the United States. In particular, without limitation, you will refrain from (a) referring Proposed Leads that could be suspected of engaging in re-exports that would be illegal under U.S. law, and (b) disclosing any technical information related to Offerings to prohibited persons or destinations in violation of United States law. You certify that neither Offerings nor any technical data related thereto nor the direct product thereof are intended (a) to be used for any purpose prohibited by the applicable export laws or regulations, including but not limited to nuclear proliferation, or (b) to be shipped or exported, either directly or indirectly, to any country to which such shipment is prohibited by the applicable export laws or regulations.

7.2. Conduct. You represent, warrant and agree that you maintain a code of conduct that requires all personnel performing activities pursuant to this Agreement to conduct themselves in compliance with the highest standards of business ethics and integrity. Either party is committed to observing applicable anti-corruption laws of the countries in which it operates, including, but not limited to, the United States Foreign Corrupt Practices Act (FCPA). You represents and warrants that (a) you will conduct your business activities in a legal and ethical manner; (b) you have submitted and will submit complete and truthful information in connection with this Partnership and all referrals; (c) you will submit all filings and obtain any approvals that may be necessary for you to perform your obligations under this Agreement, (d) you will commit no act that would reflect unfavorably on Katalon; (e) you and your officers, directors and other principals are not a Restricted Party, and (f) you will comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with your performance of this Agreement, including without limitation, privacy, anti-spam, advertising, copyright, trademark and other intellectual property laws. You acknowledges that any sums paid to you under this Agreement are for your own account and that, except as appropriate to carry out your duties set forth herein in a legal manner, you did not have any obligation to, and will not, directly or indirectly, give, offer, pay, promise to pay, or authorize the payment of money or anything of value to any other person in connection with the performance of your referral activities hereunder. In particular, without limitation, you agree not to take any actions that would cause you or Katalon to violate the United States Foreign Corrupt Practices Act or any other anti-bribery law. You shall promptly notify us of any actual or potential violation of the foregoing or any investigation, audit, notice, subpoena, demand or other communication (whether oral or written) from any governmental authority regarding your actual or potential violation of the foregoing.

7.3. U.S. Government End-Use Provisions. The following applies to all acquisitions of the Offerings and Documentation by or for the U.S. government or by any prime contractor or subcontractor under any contract, grant or other activity with the U.S. government. The Offerings and Documentation and services utilizing the Offerings and Documentation provided under this Agreement are “commercial items” as that term is defined at 48 C.F.R. 2.101 consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and other applicable acquisition regulations and are provided to the U.S. Government only as a commercial item. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202, all U.S. Government users and licensees acquire the Offerings and its associated services and Documentation with only those rights and subject to the restrictions set forth in this Agreement. Notwithstanding the foregoing, the Offerings and its associated services and Documentation may not be acquired by the U.S. government pursuant to a contract incorporating clauses prescribed by FAR Subpart 27.4 or DFARS Subpart 227.4.

7.4. Books and Records. You will maintain true, accurate, and complete books and records with respect to all transactions and asset disposals with respect to your performance of obligations under this Agreement, including without limitation records of payments made by or to, and expenses incurred by, you in relation to this Agreement. You shall maintain such books, records, and accounts during the Term of this Agreement and for a period of two (2) years thereafter (or such longer period as may be required by applicable law) and permit us, at our own cost and subject to not less than 10-day advance notice, to inspect and audit such books and records to examine your compliance with this Agreement.

8.1. Our Indemnification. We will defend you, your Affiliates and their respective officers, directors, employees and agents (collectively, the “Partner Indemnitees”), against any claim, demand, suit or proceeding made or brought against any of the Partner Indemnitees by a third party alleging that the Offerings infringe or misappropriate such third party’s intellectual property rights (a “Claim Against Partner”), and will indemnify the Partner Indemnitees from any damages (including reasonable attorney fees and costs) finally awarded against any of the Partner Indemnitees as a result of, or for amounts paid under a court-approved settlement of, a Claim Against Partner. If a Claim Against Partner is brought or is likely, in our sole opinion, to be brought, we will, at our option and expense (a) obtain the right for you to continue using the Offering; (b) replace or modify the affected Offering so that it becomes non-infringing; or (c) upon notice to you, terminate this Agreement or your use of the affected Offerings, provided that in the case of subsection (c) we will promptly refund to you the prorated portion of any unearned pre-paid subscription fees paid hereunder for the affected Offerings. Our obligations in this section do not cover third party claims to the extent such claims arise from: (i) any products, services, technology, materials or data created or provided by a party other than us, (ii) any part of the Offerings made in whole or in part in accordance to your specifications, (iii) any modifications not made by us, (iv) any combination with other products, processes or materials not provided by us (where the alleged damages, costs or expenses arise from or relate to such combination), (v) where you continue the allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) your use of the Offerings not strictly in accordance with this Agreement or any Documentation ((i) through (vi), the “Excluded Claims”).

8.2. Your Indemnification. You will defend us, our Affiliates and their respective officers, directors, employees and agents (collectively, the “Katalon Indemnitees”) against any claim, demand, suit or proceeding made or brought against any or all of the Katalon Indemnitees by a third party arising out of or attributable to the Excluded Claims, and will indemnify the Katalon Indemnitees from any damages, reasonable attorney fees and costs finally awarded against the Katalon Indemnitees as a result of, or for any amounts paid under a court-approved settlement of an Excluded Claim.

8.3. Indemnification Procedure. Each party’s obligation to indemnify the other party is conditioned on the party seeking indemnification: (a) promptly notifying the indemnifying party in writing of any claim, suit or proceeding for which indemnity is claimed, provided that failure to so notify will not remove the indemnifying party’s obligation except to the extent it is prejudiced thereby, (b) allowing the indemnifying party to solely control the defense of any claim, suit or proceeding and all negotiations for settlement; provided that the indemnifying party shall not settle any claim that requires the indemnified party to admit fault without the indemnified party’s prior written consent (such consent not to be unreasonably withheld or delayed), and (c) giving the indemnifying party reasonable assistance in the defense and settlement of any claim, suit or proceeding for which indemnity is claimed.

8.4. Sole Remedy. The foregoing indemnity obligations state the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this section.

EXCEPT FOR EACH PARTY’S VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS AND EACH PARTY’S INDEMNIFICATION OBLIGATIONS ABOVE, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY UNDER THIS AGREEMENT OR OTHERWISE, REGARDLESS OF THE FORM OF CLAIM OR ACTION, IN AN AMOUNT THAT EXCEEDS THE TOTAL AMOUNT THE PARTNER HAVE PAID TO KATALON IN THE PRECEDING TWELVE (12) MONTHS. EXCEPT FOR EACH PARTY’S VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT WILL A PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES OR COSTS (INCLUDING WITHOUT LIMITATION, LOSS OF GOODWILL OR PROFIT, BUSINESS INTERRUPTION, LOSS OF BUSINESS) IN CONNECTION WITH THE OFFERINGS OR THIS AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS.

We may modify the terms and conditions of this Agreement from time to time, with notice to you in accordance with the provision on Notices below or by posting the modified Agreement on our website; provided, however, any modifications to this Agreement will take effect at the next renewal of the Term and will automatically apply as of the renewal date unless you elect not to renew. Notwithstanding the foregoing, in some cases (e.g., to address compliance with Laws, as necessary for new features, or to update Partner Program Terms) we may specify that such modifications become effective during your then-current Term. If the effective date of such modifications is during your then-current Term and you object to the modifications, then (as your exclusive remedy) you may terminate this Agreement. To exercise this right, you must provide us with notice of your objection and termination within thirty (30) days of us providing notice of the modifications. For the avoidance of doubt, any Order is subject to the version of this Agreement in effect at the time of the Order.

11.1. Term. The term of this Agreement will continue for two years from the Effective Date and is subject to auto-renewal in accordance with this Agreement (“Term”).

11.2. Termination for Convenience. Either party may terminate this Agreement for convenience at any time for any reason by providing the other party not less than thirty (30) days’ prior written notice.

11.3. Other Termination. A party may terminate this Agreement or an Order if the other party commits any material breach of this Agreement or such Order and does not remedy the material breach within thirty (30) days after the date that it receives notice of the breach. This Agreement may be terminated by either party immediately upon written notice, in the event that: (a) the other party files a petition, in bankruptcy, seeking any reorganization, arrangement, composition, or similar relief under any law regarding insolvency or relief for debtors, or makes an assignment for the benefit of creditors; (b) a receiver, trustee, or similar officer is appointed for the business or property of such party; or (c) the other party adopts a resolution for discontinuance of its business or for dissolution. Notwithstanding other provision hereunder, Katalon may immediately terminate this Agreement in the event the Partner fails to make any payments when such payments are due. Termination of an Order shall not be deemed a termination of this Agreement. Termination of this Agreement shall, however, terminate all outstanding Orders.

11.4. Auto-Renewal. To ensure that you will not experience any interruption or loss of services, the Partnership includes an automatic renewal option by default, according to which, unless you notify us of your intention not to renew at least sixty (60) days prior to its expiration, the Term will automatically renew upon the end of the then applicable Term for additional one-year period. Unless specified in an applicable Order, all renewals (a) are subject to the applicable products or services continuing to be offered on the Offerings, (b) will be charged at the then-current prices for the applicable Offerings, (c) will exclude any discount or other promotions offered during the prior Term, and (d) are subject to any changes in usage policies, usage limits or other conditions on the Offerings.

11.5. Effect of Termination. Upon any termination or expiration of this Agreement, either party shall cease to carry out any activities under the Partnership or make use of the Documentation or any of the Marks and Materials of the other party. Each party shall promptly return or destroy all Confidential Information of the other party in its possession, except that each party may keep a copy of the other party’s Confidential Information for archival purposes, or otherwise in accordance with their respective internal recordkeeping procedures, or in compliance with applicable laws, and will not be required to delete or destroy any copies maintained in its normal-course back-up media. All rights and obligations of the parties which by their nature are reasonably intended to survive such termination or expiration will survive termination or expiration of this Agreement and each Order. Subject to the foregoing and to any rights or obligations which have accrued prior to the termination, neither party shall have any further obligation to the other party under this Agreement.

11.6. No Assurances. You have no expectation and have received no assurances that your business relationship with us will continue for any specified time beyond the term of this Agreement, that any investment in the promotion of the Offerings will be recovered or recouped, or that it will receive any anticipated amount of profits by virtue of this Agreement. Neither party shall be liable to any other damages, indemnity, or compensation solely on account of the termination or expiration of this Agreement with or without cause as provided herein, whether such damages, indemnity, or compensation might be claimed for loss through loss of investments, loss of present or prospective profits, loss of goodwill or any other loss caused by termination or expiration of this Agreement howsoever arising, and whether foreseeable or otherwise. However, termination or expiration of this Agreement, howsoever arising, shall not prejudice in any way any rights of a party with regard to any antecedent breaches by the other party which occurred on or before the date of termination or expiration, as the case may be.

12.1. Assignment. Neither this Agreement nor any rights or obligations under this Agreement may be assigned or otherwise transferred by either party without the prior written consent of the other party; provided that, such prior written consent is not required for any assignment by either party to its Affiliates or to any successor of substantially all of its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assign.

12.2. Force Majeure. Nonperformance of either party, except for the making of payments, shall be excused to the extent that performance is rendered impossible by strike, fire, flood, earthquake, governmental acts or orders or restrictions, cyber-attacks, information security and data breaches caused by third parties, failure of cloud services, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of such party (collectively, “Force Majeure Events”). The party affected by a Force Majeure Event will take all reasonable actions to minimize the consequences of any such event.

12.3. Notice. All notices, consents and other communications hereunder shall be provided in writing and shall be delivered personally or by email or registered or certified mail (return receipt requested) to the parties at the addresses set forth on the Partnership Registration Form (or such other address as may have been furnished by or on behalf of such party by like notice); provided that, for any notices sent to us, a copy of the notice will be sent to legal@katalon.com. The parties hereby agree that any electronic communication will satisfy any applicable legal communication requirements, including that such communications be in writing. Communications sent by email shall be deemed delivered upon dispatch. Communications sent by registered or certified mail shall be deemed delivered upon receipt.

12.4. Relationship of Parties. Nothing contained in this Agreement shall be construed to (a) give either party the power to direct and control the day-to-day activities of the other; or (b) constitute the parties as partners, joint venturers, co-owners or otherwise as participants in a joint undertaking.

12.5. Injunctive Relief. Nothing contained in this Agreement shall deny either party the right to seek immediate injunctive or other equitable relief from a court of competent jurisdiction: (a) in the context of a bona fide emergency or prospective irreparable harm to preserve the status quo pending resolution of a dispute between the parties or (b) where a party alleges or claims a violation of any agreement regarding intellectual property, confidential information or noninterference. Such an action may be filed and maintained notwithstanding any ongoing discussions between the parties or any ongoing arbitration proceeding.

12.6. Additional Partner Terms. Additional terms and conditions specific to the Partner Type (Solution Partner or Technology Partner) designated in the Partnership Registration Form are set forth in the Addendum (the “Additional Partner Terms”), and such particular Additional Partner Terms will apply in addition to this Agreement.

12.7. Governing Law. This Agreement shall be governed by the laws of the State of Georgia, USA, without regard to the conflicts of law provisions of any jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. To the extent that any lawsuit is permitted under this Agreement, the parties hereby expressly consent to the personal and exclusive jurisdiction and venue of the state and federal courts located in Fulton County, Georgia, USA (to the extent not addressed by arbitration below, if any).

12.8. Dispute Resolution. In the event of any dispute, claim, or controversy in connection with this Agreement (collectively, “Disputes”), each party’s senior representatives will, in good faith, attempt to resolve the Dispute. If the parties are unable to resolve the Dispute within thirty (30) days or within such other time period as the parties may agree in writing, then the parties may commence binding arbitration under JAMS’ Comprehensive Arbitration Rules and Procedures. The parties will share equally the fees and expenses of the JAMS arbitrator. The arbitration will be conducted by a sole arbitrator mutually agreed to between the parties or, failing that, by JAMS under its then prevailing rules. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The arbitrator will have the authority to grant specific performance or any other equitable or legal remedy, including provisional remedies. Each party will be responsible for its own incurred expenses arising out of any dispute resolution procedure. Any arbitration proceedings will take place in Fulton County, Georgia, USA.

12.9. Amendment; Entire Agreement; No Waiver. There are no third-party beneficiaries to this Agreement. No amendment or modification of any provision of this Agreement will be effective unless it is in writing, references and clearly states the intention to amend this Agreement, and is signed by authorized representatives of the parties. You may not use a purchase order or other instrument not issued by Katalon to modify or supplement this Agreement, and all such attempted modifications or additions to this Agreement in any such purchase order or instrument shall be void and of no effect, even if accepted or signed by both parties. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all previous understandings, communications, statements, agreements, and arrangements with respect to the subject matter hereof, whether written or oral. Any waiver of the provisions of this Agreement or of a party’s rights or remedies under this Agreement must be in writing referencing this Agreement to be effective. Failure, neglect, or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time shall not be deemed to be a waiver of such party’s rights under this Agreement and shall not prejudice such party’s right to take subsequent action. A party’s waiver of the performance of any covenant or any breach is not to be construed as a waiver of any succeeding breach or of any other covenant.

12.10. Severability. If any term, condition, or provision in this Agreement is found to be invalid, unlawful, or unenforceable to any extent, the invalid, unlawful, or unenforceable term, condition or provision shall be severed from the remaining terms, conditions, and provisions, which shall continue to be valid and enforceable to the fullest extent permitted by law.

12.11. Counterparts; Language. The parties may execute this Agreement in several counterparts, all of which together constitute one Agreement between the parties. The language of this Agreement, any Addendum and all Orders is English. All contract interpretations, notices and dispute resolutions shall be in English. Translations of any of these documents are not to be construed as official or original versions of the documents.

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with, the specified entity. For purposes of this definition, “control” means direct or indirect ownership of more than fifty percent (50%) of the voting interests of the subject entity.

“Agreement” means this partnership agreement comprising the Partnership Terms and Conditions, Partnership Registration Form, and the Partner Program Terms.

“Confidential Information” means any material or information disclosed by either party to the other party either directly or indirectly, relating to this Agreement, in writing, orally or by inspection of tangible objects (including without limitation material or information relating to such party’s research, development, know-how, products, product plans, services, customer, customer lists, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, marketing, finances, or other business information or trade secrets), which is designated as “Confidential,” “Proprietary” or some similar designation, or information the confidential or proprietary nature of which is reasonably apparent under the circumstances. Confidential Information shall not include information which (a) becomes a part of the public domain through no act or omission of recipient; (b) was in recipient’s lawful possession prior to the disclosure by discloser and had not been subject to limitations on disclosure or use, as shown by recipient’s files existing at the time of disclosure; (c) is independently developed by recipient’s employees or independent contractors who have not had access to the Confidential Information; or (d) is lawfully disclosed hereafter to recipient, without restriction, by a third party who did not acquire the information directly or indirectly from discloser.

“Customer” means a customer for your products and/or services and who has or will potentially have a separate subscription to the applicable Offerings and whose use of the Offerings is subject to the Customer Terms of Use.

“Customer Terms of Use” means the Katalon Customer Terms of Use that applies to a Customer’s use of the Offerings, currently located at https://katalon.com/terms

“Documentation” means our standard published documentation for the Offerings, including any usage guides and policies, currently located at https://docs.katalon.com/

“Effective Date” means the last signature date in the applicable Partnership Registration Form.

“Marketing Materials” means any marketing, promotional, or ancillary information, document or materials used for marketing and providing details of the Offerings to the Customer.

“Marks” means the logos, designs, trade names, trademarks, service names and service marks supplied by either party to the other for use as part of its activities under this Agreement.

“Materials” means Marketing Materials and Training Materials, collectively.

“Net Revenue” means any payments received by Katalon from a Qualified Referral under the subscription agreement between Katalon and the Qualified Referral for the Offering(s) within 12 months of the execution of such agreement, less any taxes, subsequently credited charges, write-offs, refunds or charge backs. For the avoidance of doubt, Net Revenue does not include any amounts received for renewals, professional services, support services, training services, or for products or services provided by a third party, nor does it include amounts that are owed by the Qualified Referral but have not actually been received by Katalon or amounts that are returnable or refundable to Qualified Referral.

“Offerings” means the products and services specified in an Order provided by Katalon and subject to the partnership between Katalon and you. All use of the Offerings shall be subject to the Customer Terms of Use.

“Order” means Katalon’s applicable order form(s) or other ordering document approved by Katalon that specifies, as applicable, mutually agreed upon the Offerings that you, directly or on your Customer's behalf, are ordering from us, and the amount or rate you will be charged, the billing terms, applicable currency, and form of payment.

“Partner Program Terms” means specific program terms applicable to certain partner program which are set forth on the Partnership Registration Form as may be updated from time to time.

“Restricted Party” means any entity included in any restricted party lists of the U.S. Government or located in any country on any embargoed list maintained by the U.S. Government.

“Taxes” means any applicable taxes, levies, duties, or other similar exactions imposed by a legal, governmental, or regulatory authority in any applicable jurisdiction, including, without limitation, sales, use, value-added, consumption, communications, or withholding taxes.

“Training Materials” means training information, instructions, guidance or other materials regarding the Offerings that Katalon provides to you as may be necessary to properly perform your obligations under this Agreement.

These specific Additional Partner Terms, which consist of the provisions below and the program details provided by us on the Partner portal from time to time, will apply with respect to your particular Partner Type as designated in the Partnership Registration Form, in addition to the Partnership Terms and Conditions. All defined terms used herein but not otherwise defined shall have the meanings given to them in the Partnership Terms and Conditions.

1. Distribution Right. Subject to the terms and conditions of this Agreement, we hereby grant you, as a Solution Partner, a limited, non-exclusive, non-transferable, non-sublicensable right to distribute the Offerings to Customers pursuant to agreements between you and Customers (“Reseller Agreement”). You shall not appoint sub-distributors, resellers, or other third parties to make available the Offerings to Customers.

2. Order. You shall execute an Order under the form provided by us for the Offerings you distribute to a Customer. Each executed Order is subject to and be governed by the terms of this Agreement, and in the event of any conflict between this Agreement and those of any Order, this Agreement will control (unless such Order is intended to control), and the terms of an Order and this Agreement will prevail over any conflicting provision in any purchase order or any other instrument regardless of execution by the parties.

3. Duties Regarding Proprietary Rights. You shall use commercially reasonable efforts to protect and assist in the enforcement of our intellectual property rights in the Offerings, Materials, and Documentation and shall promptly report to us any known or suspected infringement or other violation of our intellectual property rights of which you become aware.

4. Customer Relations. You shall notify us whenever there is a change in the relationship with a Customer (e.g., termination) that affects the parties’ obligations under this Agreement. In case you purchase and use the Offerings as part of the services that you provide to your Customers in respect to your products and services, such use will be governed under the Customer Terms of Use.

5. Post-Termination. In addition and without prejudice to relevant provisions under this Agreement, upon termination of this Agreement the following provisions apply:
(a) Each Customer’s right to access and use the Offerings shall continue in accordance with such Customer’s subscription terms to the Offerings, and you will cooperate to transition existing Customers to us for any renewals of such subscription terms upon the termination hereof. However, in case of the on-premises products, Customers’ license will only last through the remainder of the Customers’ then-existing term of the Reseller Agreement; and
(b) You may solely continue to provide first-line support services for the Offerings in accordance with the terms of this Agreement for the remainder of each Customer’s then-existing subscription term.

6. Support. We will provide support directly to Customers as per our support policy, except for the case of on-premises products. Where Customer uses an on-premises product, you may provide support to Customers subject to your Partner level as below:

6.1. Silver or Member Level. We shall provide support directly to Customers as per our support policy.

6.2. Gold Level or higher.
(a) You shall provide Tier 1 and Tier 2 support directly to Customers as described below and will (i) provide either of telephone, web-based and/or email support to Customers during normal business hours; (ii) respond to all Customers’ support queries, based on the Reseller Agreements; and (iii) clearly and conspicuously within the online help information, direct Customers to contact only you for technical support. You will be responsible for distributing all Katalon product releases to Customers and ensuring that they are upgraded to the most current version available.

• Tier 1 Support. “Tier 1 Support” is for direct support to users, inclusive of basic Customer issues, application function and usage. Responsibilities under Tier 1 Support include gathering details from the Customers to define the problem statement and to determine if common issues can be resolved immediately (e.g., password reset, user permission issues, or providing basic user clarification based on available documentation). At a minimum, you will gather user navigation steps that serve to define the problem clearly (e.g., navigation steps that serve to reproduce the issue or error message, error message details, and system details) and clarification based on Documentation and knowledgebase details. If Tier 1 Support personnel cannot resolve the issue, they are responsible for escalating the issue to Tier 2 Support through defined support channels.
• Tier 2 Support. “Tier 2 Support” is the in-depth technical support requiring deeper subject matter expertise, including system administration and application configuration, which may be applicable to Customer-specific settings, and specific conditions, which vary from Customer to Customer. Tier 2 Support requires more advanced troubleshooting and debugging skills, and familiarity with Customer ecosystems, including integrations.

(b) If Tier 2 Support personnel have exhausted all support options, and cannot resolve the issue, or if they determine the problem is a new issue, and requires further assistance, or cannot adequately resolve the issue after exercising their best efforts to resolve it, they are responsible for escalating the issue to our support through defined support channels. We will provide support directly to Customers as per its support policy, and you shall cooperate and work closely with us to resolve such issues, including conducting diagnostic or troubleshooting activities as reasonably requested and appropriate. You acknowledge and agree that only your designated representatives can interact with our support team.
(c) You may provide additional support to Customers, but you are solely responsible for the same.

1. Right Grant. Subject to the terms and conditions of this Agreement, we hereby grant you, as a Technology Partner, a limited, non-exclusive, non-transferable, non-sublicensable right to integrate the Offerings into your products and/or services (“Integrated Products”) in accordance with the Documentation and our guidelines and instructions.

2. Integration. You shall configure your interface in the Integrated Products for their integration with the Offerings in accordance with the Documentation and our guidelines and instructions. The parties shall reasonably cooperate and make available information and assistance in connection with their activities regarding this integration.

3. Validation. Once the initial integration activities are complete, the parties will test and validate the integration of the Offerings with the Integrated Products and ensure they meet the criteria set forth in the Documentation and Katalon’s guidelines and instructions (the “Validation Process”). Thereafter, parties will conduct the Validation Process whenever (a) either party intends to issue an update or change that is likely to affect the integration of the Offerings and the Integrated Products, or (b) one party reasonably requests the Validation Process. In order to successfully complete the Validation Process, the parties will meet and conduct a mutual demonstration of the integration between the Offerings and Integrated Products, which demonstration may be performed via remote access or via a mutually agreed upon alternative method. Upon successful completion of the Validation Process, each party shall confirm in writing to the other party that the integration has been validated. You shall not make available the Integrated Products for use by anyone else until you have successfully completed the Validation Process and the parties have confirmed validation in writing. The parties acknowledge and agree that the Validation Process is conducted in a controlled environment and that we make no commitments to you or anyone else that the successful completion of the validation process will necessarily lead to the successful performance of the Offering with the Integrated Products.

4. Integrated Product Non-Production Use. Subject to the terms and conditions of this Agreement, you grant us a non-exclusive, non-transferable license during the term of this Agreement to access a limited portion of the Integrated Products solely for our training, evaluation, and integration of the Integrated Products with the Offerings. We may not grant any license of the Integrated Products to any third party as part of such non-production use.

5. Reservation of Right. Except for the limited rights expressly granted above, you exclusively own and reserves all right, title, and interest in and to the Integrated Products, your Marks, Materials and Confidential Information, including all intellectual property rights therein. No rights are granted to us hereunder other than as expressly set forth above in this Agreement. Without limiting the generality of the foregoing, except as otherwise expressly permitted in this Agreement, we will not (a) reproduce, modify, adapt or create derivative works of the Integrated Products, (b) reverse engineer, disassemble, decompile, translate or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to the Integrated Products, except to the extent expressly permitted by applicable law (and then only upon advance notice to TP), (c) remove or obscure any proprietary or other notices on the Integrated Products, (d) attempt to gain unauthorized access to the Integrated Products, interfere with, or otherwise circumvent any security measures or mechanisms within the Integrated Products, (e) publicly disseminate information regarding the performance of any products or services on the Integrated Products; (g) use the Integrated Products to transmit or store any malicious code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses; or (h) encourage or assist any third party to do any of the foregoing.

6. Marketing Development Fund. Notwithstanding other provisions under this Agreement, subject to your compliance with all terms and conditions of this Agreement, we will contribute your Referral Commission to a marketing development fund maintained by us (“MDF”) instead of transferring such Referral Commission directly to you. You may use the contributions we make to the MDF solely for the purpose of marketing and referring prospective customers to the Offerings. In order to request an amount from the MDF, you shall follow the instructions in our MDF Program Terms found on our Partner portal. We shall then make available the requested amount based on the conditions under this Agreement.

1. Registration of Leads. You may refer a lead to us in order for us to sell our Offerings (a “Proposed Lead”) by filling in the Opportunity Registration Form we provide or as available on our website. You shall not refer a direct competitor of Katalon or any entity being a Restricted Party as a Proposed Lead. If the Proposed Lead (a) is not a potential customer that Katalon is engaging, and (b) has not been referred or registered by any other party, we will send you a written approval following the submission of the Opportunity Registration Form acknowledging your registration of such Proposed Lead. If the Proposed Lead has been previously identified by Katalon or referred by another party, you will be promptly notified and shall not be entitled to receive a Referral Commission (as defined below).

2. Pursuit of Proposed Leads by Katalon. We may, at our sole discretion, contact and seek business opportunities in Proposed Leads and may refuse to provide any Offerings to any Proposed Leads without any liability to us.

3. Qualified Referral. A Proposed Lead becomes a qualified referral (“Qualified Referral”), and you become eligible for a Referral Commission only if: (a) your registration of such Proposed Lead has been approved by us in writing; (b) you have not entered into any agreement for sales of Offerings with such Proposed Lead; and (c) such Proposed Lead enters into an agreement with us for sales of our Offerings within ninety (90) days from the date of the written approval of such Proposed Lead registration.

4. Referral Commissions. You will be paid a commission equal to a percentage indicated in the Partner Program Terms of the Net Revenue for each Qualified Referral (a “Referral Commission”).

5. Payment. Referral Commission payments will be paid on a quarterly basis within thirty (30) days following the end of the calendar quarter in which Katalon fully receives the Net Revenue. In case this Agreement is terminated or expired, except in the event of termination for your breach, Katalon will only pay you the Referral Commission on the Net Revenue received within 30 days following termination of this Agreement for the Qualified Referral determined prior to the date of termination or expiration of this Agreement.

Welcome to the Katalon Partnership! Katalon, Inc. and/or its Affiliates (“Katalon”, “we”, “us” or “our”) enter into a Partnership with you subject to the following conditions.

Please review the Partnership Registration Form, these Partnership Terms and Conditions, and the Partner Program Terms (collectively, this “Agreement”) carefully. This Agreement is between you and the Katalon entity that owns or operates the Partnership that you are engaging in. “You” or “your” means, unless otherwise indicated, your employer or another entity you represent, as applicable. You hereby represent that (a) you have full legal authority to bind your employer or such entity (as applicable) to this Agreement; and (b) after reading and understanding this Agreement, you agree to this Agreement on behalf of your employer or the respective entity (as applicable), and this Agreement shall bind your employer or such entity (as the case may be). PLEASE NOTE THAT YOU ARE DEEMED AS AN AUTHORIZED REPRESENTATIVE OF YOUR EMPLOYER OR AN ENTITY (AS APPLICABLE) IF YOU ARE USING YOUR EMPLOYER OR AN ENTITY’S EMAIL ADDRESS IN SIGNING OR ENTERING INTO A PARTNERSHIP REGISTRATION FORM.

A glossary of defined terms is included at the end of these Partnership Terms and Conditions.

1.1. Partnership. By signing the Partnership Registration Form, you agree to enter into a partnership with us under this Agreement (subject to the type of partnership you register) (“Partnership”).

1.2. Non-exclusive Agreement. Each party acknowledges that this Agreement does not create an exclusive agreement between the parties. This Agreement shall not in any way restrict either party from working with other third parties to conduct a similar scope of activities under this Agreement.

1.3. Partner. During the term of this Agreement, you shall maintain your eligibility to participate in the partnership with Katalon as provided under the Partner Program Terms. Your conduct under the Partnership shall be for your own account and at your own expense, and except as expressly permitted under this Agreement, you shall not give warranties, assume or create any obligations, enter into contracts or otherwise incur liabilities on the behalf of Katalon.

2.1. Publicity Right. You agree that either party may identify the other party as each other’s partner and use the other party’s name, Marks, or description of our Partnership on its own website, in Marketing Materials, or on other mediums subject to the publicity guidelines agreed by the parties in advance. Each party will promptly stop doing so (a) upon a request sent by the other party, or (b) upon expiration or termination of this Agreement. In this respect, either party shall not conduct anything that is inconsistent with or contrary to the ownership of the other party in its Marks.

2.2. Use of Materials. Subject to the terms of this Agreement, we hereby grant to you a non-exclusive, non-sublicensable, and non-transferable license during the term of this Agreement to (a) use our Marketing Materials for the sole purpose of marketing the Offerings to a Customer in connection with this Partnership, and (b) use the Training Materials for the sole purpose of training on Offerings. Subject to the terms of this Agreement, you hereby grant to Katalon a non-exclusive, non-sublicensable, and non-transferable license during the term of this Agreement to use your Marketing Materials free of any charge for the sole purpose of marketing the Offerings and/or the Partnership to our actual or prospective customer. Neither party shall (i) modify any Materials of the other party (including, but not limited to, any wordings, designs, and Marks contained therein) unless it obtains written approval from the other party, and (ii) continue using the other party’s Materials upon the termination or expiration of this Agreement.

2.3. Non-Production Use. During the Term and subject to the Partner Program Terms, Katalon may provide you a limited portion of an applicable Offering solely for your training, evaluation, integration (if applicable) or demonstration to the Customers under this Partnership. You may not grant any license of the Offerings to your Customers as part of such non-production use.

2.4. Co-Branded Marketing Materials. You may request the creation of co-branded Marketing Materials. Each request will be considered on a case-by-case basis at our discretion. In case we accept the request, the terms and conditions of the co-branded Marketing Materials will be agreed upon in writing by the parties.

3.1. Non-Use and Nondisclosure. Each party shall treat as confidential all Confidential Information of the other party, shall not use such Confidential Information except to exercise its rights and perform its obligations under this Agreement, and shall not disclose such Confidential Information to any employee or third party, except to those employees, advisors or representatives of the recipient who are under a contractual or fiduciary duty of confidentiality similar in content to the provisions hereof and whom the recipient will remain responsible for hereunder (“Representatives”) and who are required to have access to such Confidential Information in order to perform the obligations under this Agreement. Without limiting the foregoing, each of the parties shall use at least the same degree of care it uses to prevent the disclosure of its own confidential information of like importance, which care shall be no less than reasonable care, to prevent the disclosure of Confidential Information of the other party.

3.2. Exceptions. The receiving party may disclose Confidential Information of the disclosing party if so required pursuant to a regulation, law, subpoena, or court order (collectively, “Compelled Disclosures”), provided the receiving party gives the disclosing party notice of a Compelled Disclosure (to the extent legally permitted). The receiving party will provide reasonable cooperation to the disclosing party in connection with a Compelled Disclosure at the disclosing party’s sole expense.

3.3. Feedback. You may provide suggestions, feedback and other information to us regarding possible improvements in the operation, functionality or use of the Offerings (“Feedback”). We have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Offerings and related systems and technologies, including without limitation operating speed, memory usage, throughput, bandwidth, errors and error rates, user logins, feature usage, performance data, and other information reasonably necessary to confirm that you and your Customers are complying with license usage restrictions (“Usage Data”). You hereby grant us the perpetual, irrevocable, sublicensable right to use, copy, modify, create derivative works of and otherwise fully exploit (a) Usage Data and the Feedback to improve the operation, functionality, or use of our existing and future offerings and commercializing such offerings; (b) the Usage Data to publish aggregated statistics about product quality, provided that no data in any such publication can be used to specifically identify you or your Customers; and (c) the Usage Data to confirm that you are complying with the Partner Program Terms.

As between the parties, we exclusively own and reserve all right, title, and interest in and to the Offerings, the Documentation, our Marks, Materials, and Confidential Information, subject to limited rights expressly granted above. As between the parties, you exclusively own and reserve all right, title, and interest in and to your Marks, Materials, and Confidential Information, subject to limited rights expressly granted above. Except for the limited rights expressly granted above, we reserve all rights, title, and interest in and to the Offerings, including all intellectual property rights therein. No rights are granted to you hereunder other than as expressly set forth above in this Agreement. Without limiting the generality of the foregoing, except as otherwise expressly permitted in this Agreement, you will not, and procure that your Customer will not, (a) use the Offerings for the benefit of any third party, or permit any third party to use the Offerings (other than as expressly permitted by us), (b) reproduce, modify, adapt or create derivative works of the Offerings, (c) reverse engineer, disassemble, decompile, translate or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to the Offerings, except to the extent expressly permitted by applicable law (and then only upon advance notice to us), (d) remove or obscure any proprietary or other notices on the Offerings, (e) attempt to gain unauthorized access to the Offerings, interfere with, or otherwise circumvent any security measures or mechanisms intended to limit your use within the Offerings, (f) use the Offerings for competitive analysis, product benchmark or to build competitive products; (g) publicly disseminate information regarding the performance of any products or services on the Offerings; (h) use the Offerings to transmit or store any malicious code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses; or (i) encourage or assist any third party to do any of the foregoing.

5.1. Warranty. Each party represents and warrants that (a) it has all necessary corporate power and authority to enter into this Agreement, and to perform all of its obligations hereunder, and (b) the execution, delivery, and performance of this Agreement will not violate or conflict with any other obligations or agreements to which it is a party.

5.2. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, WE MAKE NO, AND DISCLAIMS ALL, WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WE DO NOT REPRESENT OR WARRANT THAT THE OFFERINGS WILL BE ERROR-FREE OR THAT THE OFFERINGS WILL MEET YOUR OR YOUR USERS’ REQUIREMENTS OR THAT ALL ERRORS IN THE OFFERINGS WILL BE CORRECTED, AND WE MAKE NO WARRANTIES AND DISCLAIM ALL WARRANTIES WITH RESPECT TO ANY COMPONENTS OR APPLICATIONS CREATED OR PROVIDED BY A PARTY OTHER THAN US. THE WARRANTIES STATED IN THIS SECTION ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY US. You agree that any use or purchase of our Offerings shall not be contingent on the delivery of any future functionality or features, or dependent on any oral or written comments we make regarding future functionality or features.

6.1. Export Control. The Offerings may be subject to export laws and regulations of the United States and other jurisdictions. You will comply with all export control and anti-boycott laws and regulations of the United States. In particular, without limitation, you will refrain from (a) referring Proposed Leads that could be suspected of engaging in re-exports that would be illegal under U.S. law, and (b) disclosing any technical information related to Offerings to prohibited persons or destinations in violation of United States law. You certify that neither Offerings nor any technical data related thereto nor the direct product thereof are intended (a) to be used for any purpose prohibited by the applicable export laws or regulations, including but not limited to nuclear proliferation, or (b) to be shipped or exported, either directly or indirectly, to any country to which such shipment is prohibited by the applicable export laws or regulations.

6.2. Conduct. You represent, warrant and agree that you maintain a code of conduct that requires all personnel performing activities pursuant to this Agreement to conduct themselves in compliance with the highest standards of business ethics and integrity. Either party is committed to observing applicable anti-corruption laws of the countries in which it operates, including, but not limited to, the United States Foreign Corrupt Practices Act (FCPA). You represents and warrants that (a) you will conduct your business activities in a legal and ethical manner; (b) you have submitted and will submit complete and truthful information in connection with this Partnership and all referrals; (c) you will submit all filings and obtain any approvals that may be necessary for you to perform your obligations under this Agreement, (d) you will commit no act that would reflect unfavorably on Katalon; (e) you and your officers, directors and other principals are not a Restricted Party, and (f) you will comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with your performance of this Agreement, including without limitation, privacy, anti-spam, advertising, copyright, trademark and other intellectual property laws. You acknowledges that any sums paid to you under this Agreement are for your own account and that, except as appropriate to carry out your duties set forth herein in a legal manner, you did not have any obligation to, and will not, directly or indirectly, give, offer, pay, promise to pay, or authorize the payment of money or anything of value to any other person in connection with the performance of your referral activities hereunder. In particular, without limitation, you agree not to take any actions that would cause you or Katalon to violate the United States Foreign Corrupt Practices Act or any other anti-bribery law. You shall promptly notify us of any actual or potential violation of the foregoing or any investigation, audit, notice, subpoena, demand or other communication (whether oral or written) from any governmental authority regarding your actual or potential violation of the foregoing.

6.3. U.S. Government End-Use Provisions. The following applies to all acquisitions of the Offerings and Documentation by or for the U.S. government or by any prime contractor or subcontractor under any contract, grant or other activity with the U.S. government. The Offerings and Documentation and services utilizing the Offerings and Documentation provided under this Agreement are “commercial items” as that term is defined at 48 C.F.R. 2.101 consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and other applicable acquisition regulations and are provided to the U.S. Government only as a commercial item. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202, all U.S. Government users and licensees acquire the Offerings and its associated services and Documentation with only those rights and subject to the restrictions set forth in this Agreement. Notwithstanding the foregoing, the Offerings and its associated services and Documentation may not be acquired by the U.S. government pursuant to a contract incorporating clauses prescribed by FAR Subpart 27.4 or DFARS Subpart 227.4.

6.4. Books and Records. You will maintain true, accurate, and complete books and records with respect to all transactions and asset disposals with respect to your performance of obligations under this Agreement, including without limitation records of payments made by or to, and expenses incurred by, you in relation to this Agreement. You shall maintain such books, records, and accounts during the Term of this Agreement and for a period of two (2) years thereafter (or such longer period as may be required by applicable law) and permit us, at our own cost and subject to not less than 10-day advance notice, to inspect and audit such books and records to examine your compliance with this Agreement.

7.1. Our Indemnification. We will defend you, your Affiliates and their respective officers, directors, employees and agents (collectively, the “Partner Indemnitees”), against any claim, demand, suit or proceeding made or brought against any of the Partner Indemnitees by a third party alleging that the Offerings infringe or misappropriate such third party’s intellectual property rights (a “Claim Against Partner”), and will indemnify the Partner Indemnitees from any damages (including reasonable attorney fees and costs) finally awarded against any of the Partner Indemnitees as a result of, or for amounts paid under a court-approved settlement of, a Claim Against Partner. If a Claim Against Partner is brought or is likely, in our sole opinion, to be brought, we will, at our option and expense (a) obtain the right for you to continue using the Offering; (b) replace or modify the affected Offering so that it becomes non-infringing; or (c) upon notice to you, terminate this Agreement or your use of the affected Offerings, provided that in the case of subsection (c) we will promptly refund to you the prorated portion of any unearned pre-paid subscription fees paid hereunder for the affected Offerings. Our obligations in this section do not cover third party claims to the extent such claims arise from: (i) any products, services, technology, materials or data created or provided by a party other than us, (ii) any part of the Offerings made in whole or in part in accordance to your specifications, (iii) any modifications not made by us, (iv) any combination with other products, processes or materials not provided by us (where the alleged damages, costs or expenses arise from or relate to such combination), (v) where you continue the allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) your use of the Offerings not strictly in accordance with this Agreement or any Documentation ((i) through (vi), the “Excluded Claims”).

7.2. Your Indemnification. You will defend us, our Affiliates and their respective officers, directors, employees and agents (collectively, the “Katalon Indemnitees”) against any claim, demand, suit or proceeding made or brought against any or all of the Katalon Indemnitees by a third party arising out of or attributable to the Excluded Claims, and will indemnify the Katalon Indemnitees from any damages, reasonable attorney fees and costs finally awarded against the Katalon Indemnitees as a result of, or for any amounts paid under a court-approved settlement of an Excluded Claim.

7.3. Indemnification Procedure. Each party’s obligation to indemnify the other party is conditioned on the party seeking indemnification: (a) promptly notifying the indemnifying party in writing of any claim, suit or proceeding for which indemnity is claimed, provided that failure to so notify will not remove the indemnifying party’s obligation except to the extent it is prejudiced thereby, (b) allowing the indemnifying party to solely control the defense of any claim, suit or proceeding and all negotiations for settlement; provided that the indemnifying party shall not settle any claim that requires the indemnified party to admit fault without the indemnified party’s prior written consent (such consent not to be unreasonably withheld or delayed), and (c) giving the indemnifying party reasonable assistance in the defense and settlement of any claim, suit or proceeding for which indemnity is claimed.

7.4. Sole Remedy. The foregoing indemnity obligations state the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this section.

EXCEPT FOR EACH PARTY’S VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS AND EACH PARTY’S INDEMNIFICATION OBLIGATIONS ABOVE, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY UNDER THIS AGREEMENT OR OTHERWISE, REGARDLESS OF THE FORM OF CLAIM OR ACTION, IN AN AMOUNT THAT EXCEEDS THE TOTAL AMOUNT PAID BY THE PARTY MAKING THE CLAIM TO THE OTHER PARTY IN THE PRECEDING TWELVE (12) MONTHS. EXCEPT FOR EACH PARTY’S VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT WILL A PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES OR COSTS (INCLUDING WITHOUT LIMITATION, LOSS OF GOODWILL OR PROFIT, BUSINESS INTERRUPTION, LOSS OF BUSINESS) IN CONNECTION WITH THE OFFERINGS OR THIS AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS.

We may modify the terms and conditions of this Agreement from time to time, with notice to you in accordance with the provision on Notices below or by posting the modified Agreement on our website; provided, however, any modifications to this Agreement will take effect at the next renewal of the Term and will automatically apply as of the renewal date unless you elect not to renew. Notwithstanding the foregoing, in some cases (e.g., to address compliance with Laws, as necessary for new features, or to update Partner Program Terms) we may specify that such modifications become effective during your then-current Term. If the effective date of such modifications is during your then-current Term and you object to the modifications, then (as your exclusive remedy) you may terminate this Agreement. To exercise this right, you must provide us with notice of your objection and termination within thirty (30) days of us providing notice of the modifications. For the avoidance of doubt, any Order is subject to the version of this Agreement in effect at the time of the Order.

10.1. Term. The term of this Agreement will continue for two years from the Effective Date and is subject to auto-renewal in accordance with this Agreement (“Term”).

10.2. Termination for Convenience. Either party may terminate this Agreement for convenience at any time for any reason by providing the other party not less than thirty (30) days’ prior written notice.

10.3. Other Termination. A party may terminate this Agreement or an Order if the other party commits any material breach of this Agreement or such Order and does not remedy the material breach within thirty (30) days after the date that it receives notice of the breach. This Agreement may be terminated by either party immediately upon written notice, in the event that: (a) the other party files a petition, in bankruptcy, seeking any reorganization, arrangement, composition, or similar relief under any law regarding insolvency or relief for debtors, or makes an assignment for the benefit of creditors; (b) a receiver, trustee, or similar officer is appointed for the business or property of such party; or (c) the other party adopts a resolution for discontinuance of its business or for dissolution. Notwithstanding other provision hereunder, Katalon may immediately terminate this Agreement in the event the Partner fails to make any payments when such payments are due. Termination of an Order shall not be deemed a termination of this Agreement. Termination of this Agreement shall, however, terminate all outstanding Orders.

10.4. Auto-Renewal. To ensure that you will not experience any interruption or loss of services, the Partnership includes an automatic renewal option by default, according to which, unless you notify us of your intention not to renew at least sixty (60) days prior to its expiration, the Term will automatically renew upon the end of the then applicable Term for additional one-year period. Unless specified in an applicable Order, all renewals (a) are subject to the applicable products or services continuing to be offered on the Offerings, (b) will be charged at the then-current prices for the applicable Offerings, (c) will exclude any discount or other promotions offered during the prior Term, and (d) are subject to any changes in usage policies, usage limits or other conditions on the Offerings.

10.5. Effect of Termination. Upon any termination or expiration of this Agreement, either party shall cease to carry out any activities under the Partnership or make use of the Documentation or any of the Marks and Materials of the other party. Each party shall promptly return or destroy all Confidential Information of the other party in its possession, except that each party may keep a copy of the other party’s Confidential Information for archival purposes, or otherwise in accordance with their respective internal recordkeeping procedures, or in compliance with applicable laws, and will not be required to delete or destroy any copies maintained in its normal-course back-up media. All rights and obligations of the parties which by their nature are reasonably intended to survive such termination or expiration will survive termination or expiration of this Agreement and each Order. Subject to the foregoing and to any rights or obligations which have accrued prior to the termination, neither party shall have any further obligation to the other party under this Agreement.

10.6. No Assurances. You have no expectation and have received no assurances that your business relationship with us will continue for any specified time beyond the term of this Agreement, that any investment in the promotion of the Offerings will be recovered or recouped, or that it will receive any anticipated amount of profits by virtue of this Agreement. Neither party shall be liable to any other damages, indemnity, or compensation solely on account of the termination or expiration of this Agreement with or without cause as provided herein, whether such damages, indemnity, or compensation might be claimed for loss through loss of investments, loss of present or prospective profits, loss of goodwill or any other loss caused by termination or expiration of this Agreement howsoever arising, and whether foreseeable or otherwise. However, termination or expiration of this Agreement, howsoever arising, shall not prejudice in any way any rights of a party with regard to any antecedent breaches by the other party which occurred on or before the date of termination or expiration, as the case may be.

11.1. Assignment. Neither this Agreement nor any rights or obligations under this Agreement may be assigned or otherwise transferred by either party without the prior written consent of the other party; provided that, such prior written consent is not required for any assignment by either party to its Affiliates or to any successor of substantially all of its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assign.

11.2. Force Majeure. Nonperformance of either party, except for the making of payments, shall be excused to the extent that performance is rendered impossible by strike, fire, flood, earthquake, governmental acts or orders or restrictions, cyber-attacks, information security and data breaches caused by third parties, failure of cloud services, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of such party (collectively, “Force Majeure Events”). The party affected by a Force Majeure Event will take all reasonable actions to minimize the consequences of any such event.

11.3. Notice. All notices, consents and other communications hereunder shall be provided in writing and shall be delivered personally or by email or registered or certified mail (return receipt requested) to the parties at the addresses set forth on the Partnership Registration Form (or such other address as may have been furnished by or on behalf of such party by like notice); provided that, for any notices sent to us, a copy of the notice will be sent to legal@katalon.com. The parties hereby agree that any electronic communication will satisfy any applicable legal communication requirements, including that such communications be in writing. Communications sent by email shall be deemed delivered upon dispatch. Communications sent by registered or certified mail shall be deemed delivered upon receipt.

11.4. Relationship of Parties. Nothing contained in this Agreement shall be construed to (a) give either party the power to direct and control the day-to-day activities of the other; or (b) constitute the parties as partners, joint venturers, co-owners or otherwise as participants in a joint undertaking.

11.5. Injunctive Relief. Nothing contained in this Agreement shall deny either party the right to seek immediate injunctive or other equitable relief from a court of competent jurisdiction: (a) in the context of a bona fide emergency or prospective irreparable harm to preserve the status quo pending resolution of a dispute between the parties or (b) where a party alleges or claims a violation of any agreement regarding intellectual property, confidential information or noninterference. Such an action may be filed and maintained notwithstanding any ongoing discussions between the parties or any ongoing arbitration proceeding.

11.6. Additional Partner Terms. Additional terms and conditions specific to the Partner Type (Solution Partner or Technology Partner) designated in the Partnership Registration Form are set forth in the Addendum (the “Additional Partner Terms”), and such particular Additional Partner Terms will apply in addition to this Agreement.

11.7. Governing Law. This Agreement shall be governed by the laws of the State of Georgia, USA, without regard to the conflicts of law provisions of any jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. To the extent that any lawsuit is permitted under this Agreement, the parties hereby expressly consent to the personal and exclusive jurisdiction and venue of the state and federal courts located in Fulton County, Georgia, USA (to the extent not addressed by arbitration below, if any).

11.8. Dispute Resolution. In the event of any dispute, claim, or controversy in connection with this Agreement (collectively, “Disputes”), each party’s senior representatives will, in good faith, attempt to resolve the Dispute. If the parties are unable to resolve the Dispute within thirty (30) days or within such other time period as the parties may agree in writing, then the parties may commence binding arbitration under JAMS’ Comprehensive Arbitration Rules and Procedures. The parties will share equally the fees and expenses of the JAMS arbitrator. The arbitration will be conducted by a sole arbitrator mutually agreed to between the parties or, failing that, by JAMS under its then prevailing rules. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The arbitrator will have the authority to grant specific performance or any other equitable or legal remedy, including provisional remedies. Each party will be responsible for its own incurred expenses arising out of any dispute resolution procedure. Any arbitration proceedings will take place in Fulton County, Georgia, USA.

11.9. Amendment; Entire Agreement; No Waiver. There are no third-party beneficiaries to this Agreement. No amendment or modification of any provision of this Agreement will be effective unless it is in writing, references and clearly states the intention to amend this Agreement, and is signed by authorized representatives of the parties. You may not use a purchase order or other instrument not issued by Katalon to modify or supplement this Agreement, and all such attempted modifications or additions to this Agreement in any such purchase order or instrument shall be void and of no effect, even if accepted or signed by both parties. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all previous understandings, communications, statements, agreements, and arrangements with respect to the subject matter hereof, whether written or oral. Any waiver of the provisions of this Agreement or of a party’s rights or remedies under this Agreement must be in writing referencing this Agreement to be effective. Failure, neglect, or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time shall not be deemed to be a waiver of such party’s rights under this Agreement and shall not prejudice such party’s right to take subsequent action. A party’s waiver of the performance of any covenant or any breach is not to be construed as a waiver of any succeeding breach or of any other covenant.

11.10. Severability. . If any term, condition, or provision in this Agreement is found to be invalid, unlawful, or unenforceable to any extent, the invalid, unlawful, or unenforceable term, condition or provision shall be severed from the remaining terms, conditions, and provisions, which shall continue to be valid and enforceable to the fullest extent permitted by law.

11.11. Counterparts; Language. The parties may execute this Agreement in several counterparts, all of which together constitute one Agreement between the parties. The language of this Agreement, any Addendum and all Orders is English. All contract interpretations, notices and dispute resolutions shall be in English. Translations of any of these documents are not to be construed as official or original versions of the documents.

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with, the specified entity. For purposes of this definition, “control” means direct or indirect ownership of more than fifty percent (50%) of the voting interests of the subject entity.

“Agreement” means this partnership agreement comprising the Partnership Terms and Conditions, Partnership Registration Form, and the Partner Program Terms.

“Confidential Information” means any material or information disclosed by either party to the other party either directly or indirectly, relating to this Agreement, in writing, orally or by inspection of tangible objects (including without limitation material or information relating to such party’s research, development, know-how, products, product plans, services, customer, customer lists, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, marketing, finances, or other business information or trade secrets), which is designated as “Confidential,” “Proprietary” or some similar designation, or information the confidential or proprietary nature of which is reasonably apparent under the circumstances. Confidential Information shall not include information which (a) becomes a part of the public domain through no act or omission of recipient; (b) was in recipient’s lawful possession prior to the disclosure by discloser and had not been subject to limitations on disclosure or use, as shown by recipient’s files existing at the time of disclosure; (c) is independently developed by recipient’s employees or independent contractors who have not had access to the Confidential Information; or (d) is lawfully disclosed hereafter to recipient, without restriction, by a third party who did not acquire the information directly or indirectly from discloser.

“Customer” means a customer for your products and/or services and who has or will potentially have a separate subscription to the applicable Offerings and whose use of the Offerings is subject to the Customer Terms of Use.

“Customer Terms of Use” means the Katalon Customer Terms of Use that applies to a Customer’s use of the Offerings, currently located at https://katalon.com/terms

“Documentation” means our standard published documentation for the Offerings, including any usage guides and policies, currently located at https://docs.katalon.com/

“Effective Date” means the last signature date in the applicable Partnership Registration Form.

“Marketing Materials” means any marketing, promotional, or ancillary information, document or materials used for marketing and providing details of the Offerings to the Customer.

“Marks” means the logos, designs, trade names, trademarks, service names and service marks supplied by either party to the other for use as part of its activities under this Agreement.

“Materials” means Marketing Materials and Training Materials, collectively.

“Net Revenue” means any payments received by Katalon from a Qualified Referral under the subscription agreement between Katalon and the Qualified Referral for the Offering(s) within 12 months of the execution of such agreement, less any taxes, subsequently credited charges, write-offs, refunds or charge backs. For the avoidance of doubt, Net Revenue does not include any amounts received for renewals, professional services, support services, training services, or for products or services provided by a third party, nor does it include amounts that are owed by the Qualified Referral but have not actually been received by Katalon or amounts that are returnable or refundable to Qualified Referral.

“Offerings” means the products and services specified in an Order provided by Katalon and subject to the partnership between Katalon and you. All use of the Offerings shall be subject to the Customer Terms of Use.

“Order” means Katalon’s applicable order form(s) or other ordering document approved by Katalon that specifies, as applicable, mutually agreed upon the Offerings that you, directly or on your Customer's behalf, are ordering from us, and the amount or rate you will be charged, the billing terms, applicable currency, and form of payment.

“Partner Program Terms” means specific program terms applicable to certain partner program which are set forth on the Partnership Registration Form as may be updated from time to time.

“Restricted Party” means any entity included in any restricted party lists of the U.S. Government or located in any country on any embargoed list maintained by the U.S. Government.

“Taxes” means any applicable taxes, levies, duties, or other similar exactions imposed by a legal, governmental, or regulatory authority in any applicable jurisdiction, including, without limitation, sales, use, value-added, consumption, communications, or withholding taxes.

“Training Materials” means training information, instructions, guidance or other materials regarding the Offerings that Katalon provides to you as may be necessary to properly perform your obligations under this Agreement.

These specific Additional Partner Terms, which consist of the provisions below and the program details provided by us on the Partner portal from time to time, will apply with respect to your particular Partner Type as designated in the Partnership Registration Form, in addition to the Partnership Terms and Conditions. All defined terms used herein but not otherwise defined shall have the meanings given to them in the Partnership Terms and Conditions.

Subject to the terms and conditions of this Agreement, we hereby grant you, as a Solution Partner, a limited, non-exclusive, non-transferable, non-sublicensable right to distribute the Offerings to Customers pursuant to agreements between you and Customers (“Reseller Agreement”). You shall not appoint sub-distributors, resellers, or other third parties to make available the Offerings to Customers.

You shall execute an Order under the form provided by us for the Offerings you distribute to a Customer. Each executed Order is subject to and be governed by the terms of this Agreement, and in the event of any conflict between this Agreement and those of any Order, this Agreement will control (unless such Order is intended to control), and the terms of an Order and this Agreement will prevail over any conflicting provision in any purchase order or any other instrument regardless of execution by the parties.

You shall use commercially reasonable efforts to protect and assist in the enforcement of our intellectual property rights in the Offerings, Materials, and Documentation and shall promptly report to us any known or suspected infringement or other violation of our intellectual property rights of which you become aware.

You shall notify us whenever there is a change in the relationship with a Customer (e.g., termination) that affects the parties’ obligations under this Agreement. In case you purchase and use the Offerings as part of the services that you provide to your Customers in respect to your products and services, such use will be governed under the Customer Terms of Use.

In addition and without prejudice to relevant provisions under this Agreement, upon termination of this Agreement the following provisions apply:
(a) Each Customer’s right to access and use the Offerings shall continue in accordance with such Customer’s subscription terms to the Offerings, and you will cooperate to transition existing Customers to us for any renewals of such subscription terms upon the termination hereof. However, in case of the on-premises products, Customers’ license will only last through the remainder of the Customers’ then-existing term of the Reseller Agreement; and
(b) You may solely continue to provide first-line support services for the Offerings in accordance with the terms of this Agreement for the remainder of each Customer’s then-existing subscription term.

We will provide support directly to Customers as per our support policy, except for the case of on-premises products. Where Customer uses an on-premises product, you may provide support to Customers subject to your Partner level as below:

6.1. Silver or Member Level. We shall provide support directly to Customers as per our support policy.

6.2. Gold Level or higher.
(a) You shall provide Tier 1 and Tier 2 support directly to Customers as described below and will (i) provide either of telephone, web-based and/or email support to Customers during normal business hours; (ii) respond to all Customers’ support queries, based on the Reseller Agreements; and (iii) clearly and conspicuously within the online help information, direct Customers to contact only you for technical support. You will be responsible for distributing all Katalon product releases to Customers and ensuring that they are upgraded to the most current version available.

• Tier 1 Support. “Tier 1 Support” is for direct support to users, inclusive of basic Customer issues, application function and usage. Responsibilities under Tier 1 Support include gathering details from the Customers to define the problem statement and to determine if common issues can be resolved immediately (e.g., password reset, user permission issues, or providing basic user clarification based on available documentation). At a minimum, you will gather user navigation steps that serve to define the problem clearly (e.g., navigation steps that serve to reproduce the issue or error message, error message details, and system details) and clarification based on Documentation and knowledgebase details. If Tier 1 Support personnel cannot resolve the issue, they are responsible for escalating the issue to Tier 2 Support through defined support channels.
• Tier 2 Support. “Tier 2 Support” is the in-depth technical support requiring deeper subject matter expertise, including system administration and application configuration, which may be applicable to Customer-specific settings, and specific conditions, which vary from Customer to Customer. Tier 2 Support requires more advanced troubleshooting and debugging skills, and familiarity with Customer ecosystems, including integrations.

(b) If Tier 2 Support personnel have exhausted all support options, and cannot resolve the issue, or if they determine the problem is a new issue, and requires further assistance, or cannot adequately resolve the issue after exercising their best efforts to resolve it, they are responsible for escalating the issue to our support through defined support channels. We will provide support directly to Customers as per its support policy, and you shall cooperate and work closely with us to resolve such issues, including conducting diagnostic or troubleshooting activities as reasonably requested and appropriate. You acknowledge and agree that only your designated representatives can interact with our support team.
(c) You may provide additional support to Customers, but you are solely responsible for the same.

7.1. Fees. You shall pay us the fees for the Offering(s) as set forth in the applicable Order. Unless otherwise set forth in an applicable Order, payment shall be due within thirty (30) days of receipt of invoice and shall be made in United States dollars, and invoices may be submitted via email to the email address(es) you designate herein. Subject to any payment dispute (below), payment obligations are non-cancelable and all fees, once paid, are non-refundable. You agree (a) that any and all discounts, incentives, and promotional pricing (if any) offered by Katalon are conditioned upon your timely payments of all fees due hereunder; (b) to pay a late charge of one and one-half percent (1.5%) per month (or part of a month), or the maximum lawful rate permitted by applicable law, whichever is less, for all amounts, not subject to a good faith dispute (below), and not paid when due. Katalon may suspend or terminate the use of the Offerings if we do not receive the payment from you.

7.2. Taxes. All fees are exclusive of Taxes. You will pay all Taxes associated with this Agreement, excluding any taxes based on our net income, property, or employees. If you are required by the applicable law to withhold any Taxes from payments owed to us, you will reduce or eliminate such withheld Taxes upon receipt of the appropriate tax certificate or document provided by us. You will provide us with proof of payment of any withheld Taxes to the appropriate authority. Taxes will be shown as a separate line item on an invoice.

7.3. Payment Disputes. You will notify us in writing within thirty (30) days of the date we bill you for any fees that you wish to dispute. Where you are disputing any fees, you must act reasonably and in good faith and will cooperate diligently with us to resolve the dispute. We will not charge you a late fee or suspend the provision of the Offerings for unpaid fees that are in dispute, unless you fail to cooperate diligently with us, or we determine the dispute is not reasonable or not brought in good faith by you.

Subject to the terms and conditions of this Agreement, we hereby grant you, as a Technology Partner, a limited, non-exclusive, non-transferable, non-sublicensable right to integrate the Offerings into your products and/or services (“Integrated Products”) in accordance with the Documentation and our guidelines and instructions.

You shall configure your interface in the Integrated Products for their integration with the Offerings in accordance with the Documentation and our guidelines and instructions. The parties shall reasonably cooperate and make available information and assistance in connection with their activities regarding this integration.

Once the initial integration activities are complete, the parties will test and validate the integration of the Offerings with the Integrated Products and ensure they meet the criteria set forth in the Documentation and Katalon’s guidelines and instructions (the “Validation Process”). Thereafter, parties will conduct the Validation Process whenever (a) either party intends to issue an update or change that is likely to affect the integration of the Offerings and the Integrated Products, or (b) one party reasonably requests the Validation Process. In order to successfully complete the Validation Process, the parties will meet and conduct a mutual demonstration of the integration between the Offerings and Integrated Products, which demonstration may be performed via remote access or via a mutually agreed upon alternative method. Upon successful completion of the Validation Process, each party shall confirm in writing to the other party that the integration has been validated. You shall not make available the Integrated Products for use by anyone else until you have successfully completed the Validation Process and the parties have confirmed validation in writing. The parties acknowledge and agree that the Validation Process is conducted in a controlled environment and that we make no commitments to you or anyone else that the successful completion of the validation process will necessarily lead to the successful performance of the Offering with the Integrated Products.

Subject to the terms and conditions of this Agreement, you grant us a non-exclusive, non-transferable license during the term of this Agreement to access a limited portion of the Integrated Products solely for our training, evaluation, and integration of the Integrated Products with the Offerings. We may not grant any license of the Integrated Products to any third party as part of such non-production use.

Except for the limited rights expressly granted above, you exclusively own and reserves all right, title, and interest in and to the Integrated Products, your Marks, Materials and Confidential Information, including all intellectual property rights therein. No rights are granted to us hereunder other than as expressly set forth above in this Agreement. Without limiting the generality of the foregoing, except as otherwise expressly permitted in this Agreement, we will not (a) reproduce, modify, adapt or create derivative works of the Integrated Products, (b) reverse engineer, disassemble, decompile, translate or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to the Integrated Products, except to the extent expressly permitted by applicable law (and then only upon advance notice to TP), (c) remove or obscure any proprietary or other notices on the Integrated Products, (d) attempt to gain unauthorized access to the Integrated Products, interfere with, or otherwise circumvent any security measures or mechanisms within the Integrated Products, (e) publicly disseminate information regarding the performance of any products or services on the Integrated Products; (g) use the Integrated Products to transmit or store any malicious code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses; or (h) encourage or assist any third party to do any of the foregoing.

Notwithstanding other provisions under this Agreement, subject to your compliance with all terms and conditions of this Agreement, we will contribute your Referral Commission to a marketing development fund maintained by us (“MDF”) instead of transferring such Referral Commission directly to you. You may use the contributions we make to the MDF solely for the purpose of marketing and referring prospective customers to the Offerings. In order to request an amount from the MDF, you shall follow the instructions in our MDF Program Terms found on our Partner portal. We shall then make available the requested amount based on the conditions under this Agreement.

You may refer a lead to us in order for us to sell our Offerings (a “Proposed Lead”) by filling in the Opportunity Registration Form we provide or as available on our website. You shall not refer a direct competitor of Katalon or any entity being a Restricted Party as a Proposed Lead. If the Proposed Lead (a) is not a potential customer that Katalon is engaging, and (b) has not been referred or registered by any other party, we will send you a written approval following the submission of the Opportunity Registration Form acknowledging your registration of such Proposed Lead. If the Proposed Lead has been previously identified by Katalon or referred by another party, you will be promptly notified and shall not be entitled to receive a Referral Commission (as defined below).

We may, at our sole discretion, contact and seek business opportunities in Proposed Leads and may refuse to provide any Offerings to any Proposed Leads without any liability to us.

A Proposed Lead becomes a qualified referral (“Qualified Referral”), and you become eligible for a Referral Commission only if: (a) your registration of such Proposed Lead has been approved by us in writing; (b) you have not entered into any agreement for sales of Offerings with such Proposed Lead; and (c) such Proposed Lead enters into an agreement with us for sales of our Offerings within ninety (90) days from the date of the written approval of such Proposed Lead registration.

You will be paid a commission equal to a percentage indicated in the Partner Program Terms of the Net Revenue for each Qualified Referral (a “Referral Commission”).

Referral Commission payments will be paid on a quarterly basis within thirty (30) days following the end of the calendar quarter in which Katalon fully receives the Net Revenue. In case this Agreement is terminated or expired, except in the event of termination for your breach, Katalon will only pay you the Referral Commission on the Net Revenue received within 30 days following termination of this Agreement for the Qualified Referral determined prior to the date of termination or expiration of this Agreement.

Welcome to the Katalon Partnership Program! Katalon, Inc. and/or its Affiliates (“Katalon”, “we”, “us” or “our”) enter into a Partnership with you subject to the following terms and conditions.

Please review the Partnership Registration Form, these Partnership Terms and Conditions, and the Partner Program Terms (collectively, this “Agreement”) carefully. This Agreement is between you and the Katalon entity that owns or operates the Offerings that are the basis of this Agreement. “You” or “your” means, unless otherwise indicated, your employer or another entity you represent, as applicable. You hereby represent that (a) you have full legal authority to bind your employer or such entity (as applicable) to this Agreement; and (b) after reading and understanding this Agreement, you agree to this Agreement on behalf of your employer or the respective entity (as applicable), and this Agreement shall bind your employer or such entity (as the case may be). PLEASE NOTE THAT YOU ARE DEEMED AS AN AUTHORIZED REPRESENTATIVE OF YOUR EMPLOYER OR AN ENTITY (AS APPLICABLE) IF YOU ARE USING YOUR EMPLOYER OR AN ENTITY’S EMAIL ADDRESS IN SIGNING OR ENTERING INTO A PARTNERSHIP REGISTRATION FORM.

A glossary of defined terms is included at the end of these Partnership Terms and Conditions.

1.1. Partnership. By signing the Partnership Registration Form, you agree to enter into a business relationship with us under this Agreement for the partnership activities and Partner Type indicated on the Partnership Registration Form (“Partnership”).

1.2. Non-exclusive Agreement.Each party acknowledges that this Agreement does not create an exclusive agreement between the parties. This Agreement shall not in any way restrict either party from working with other third parties to conduct a similar scope of activities under this Agreement.

1.3. Partner. During the term of this Agreement, you agree to maintain your eligibility to participate in the Partnership with Katalon as provided under the Partner Program Terms. Your conduct under the Partnership shall be for your own account and at your own expense, and except as expressly permitted under this Agreement, you shall not give warranties, assume or create any obligations, enter into contracts or otherwise incur liabilities on the behalf of Katalon.

2.1. Publicity Right. You agree that either party may identify the other party as each other’s partner and use the other party’s name, Marks, or description of our Partnership on its own website, in Marketing Materials, or on other mediums subject to the publicity guidelines agreed by the parties in advance. Each party will promptly stop doing so (a) upon a request sent by the other party, or (b) upon expiration or termination of this Agreement. In this respect, neither party shall conduct anything that is inconsistent with or contrary to the ownership of the other party in its Marks.

2.2. Use of Materials. Subject to the terms of this Agreement, we hereby grant to you a non-exclusive, non-sublicensable, and non-transferable license during the term of this Agreement to (a) use our Marketing Materials for the sole purpose of marketing the Offerings to a Customer in connection with this Partnership, and (b) use the Training Materials for the sole purpose of providing training on the Offerings. Subject to the terms of this Agreement, you hereby grant to Katalon a non-exclusive, non-sublicensable, and non-transferable license during the term of this Agreement to use your Marketing Materials free of any charge for the sole purpose of marketing the Offerings and/or the Partnership to our actual or prospective customers. Neither party shall (i) modify any Materials of the other party (including, but not limited to, any wordings, designs, and Marks contained therein) unless it obtains written approval from the other party, or (ii) continue using the other party’s Materials after the termination or expiration of this Agreement.

2.3. Non-Production Use. During the Term and subject to the Partner Program Terms, Katalon may provide you a limited set of license or scope of use of an applicable Offering solely for your internal training, evaluation, integration (if applicable) or for demonstration to the Customers under this Partnership. You may not grant any license of the Offerings to your Customers as part of such non-production use.

2.4. Co-Branded Marketing Materials. You may request the creation of co-branded Marketing Materials. Each request will be considered on a case-by-case basis at our discretion. In case we accept the request, the terms and conditions of the co-branded Marketing Materials will be agreed upon in writing by the parties.

3.1. Non-Use and Nondisclosure. Each party shall treat as confidential all Confidential Information of the other party, shall not use such Confidential Information except to exercise its rights and perform its obligations under this Agreement, and shall not disclose such Confidential Information to any employee or third party, except to those employees, advisors or representatives of the recipient who are under a contractual or fiduciary duty of confidentiality similar in content to the provisions hereof and whom the recipient will remain responsible for hereunder (“Representatives”) and who are required to have access to such Confidential Information in order to perform the obligations under this Agreement. Without limiting the foregoing, each of the parties shall use at least the same degree of care it uses to prevent the disclosure of its own confidential information of like importance, which care shall be no less than reasonable care, to prevent the disclosure of Confidential Information of the other party.

3.2. Exceptions. The receiving party may disclose Confidential Information of the disclosing party if so required pursuant to a regulation, law, subpoena, or court order (collectively, “Compelled Disclosures”), provided the receiving party gives the disclosing party notice of a Compelled Disclosure (to the extent legally permitted). The receiving party will provide reasonable cooperation to the disclosing party in connection with a Compelled Disclosure at the disclosing party’s sole expense.

3.3. Feedback. You may provide suggestions, feedback and other information to us regarding possible improvements in the operation, functionality or use of the Offerings (“Feedback”). We have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Offerings and related systems and technologies, including without limitation operating speed, memory usage, throughput, bandwidth, errors and error rates, user logins, feature usage, performance data, and other information reasonably necessary to confirm that you and your Customers are complying with license usage restrictions (“Usage Data”). You hereby grant us the perpetual, irrevocable, sublicensable right to use, copy, modify, create derivative works of and otherwise fully exploit (a) Usage Data and the Feedback to improve the operation, functionality, or use of our existing and future offerings and commercializing such offerings; (b) the Usage Data to publish aggregated statistics about product quality, provided that no data in any such publication can be used to specifically identify you or your Customers; and (c) the Usage Data to confirm that you are complying with the Partner Program Terms.

As between the parties and except for the limited rights expressly granted herein, (x)we exclusively own and reserve all right, title, and interest in and to the Offerings, the Documentation, and our Marks, Materials, and Confidential Information, including all intellectual property rights therein; and (y) you exclusively own and reserve all right, title, and interest in and to your Marks, Materials, and Confidential Information, including all intellectual property rights therein. . No rights are granted to you hereunder other than as expressly set forth in this Agreement. Without limiting the generality of the foregoing, except as otherwise expressly permitted in this Agreement, you will not, and procure that your Customer will not, (a) use the Offerings for the benefit of any third party, or permit any third party to use the Offerings (other than as expressly permitted by us), (b) reproduce, modify, adapt or create derivative works of the Offerings, (c) reverse engineer, disassemble, decompile, translate or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to the Offerings, except to the extent expressly permitted by applicable law (and then only upon advance notice to us), (d) remove or obscure any proprietary or other notices on the Offerings, (e) attempt to gain unauthorized access to the Offerings, interfere with, or otherwise circumvent any security measures or mechanisms intended to limit your use within the Offerings, (f) use the Offerings for competitive analysis, product benchmark or to build competitive products; (g) publicly disseminate information regarding the performance of any products or services on the Offerings; (h) use the Offerings to transmit or store any malicious code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses; or (i) encourage or assist any third party to do any of the foregoing.

5.1. Warranty. Each party represents and warrants that (a) it has all necessary corporate power and authority to enter into this Agreement, and to perform all of its obligations hereunder, and (b) the execution, delivery, and performance of this Agreement will not violate or conflict with any other obligations or agreements to which it is a party.

5.2. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, WE MAKE NO, AND DISCLAIMS ALL, WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WE DO NOT REPRESENT OR WARRANT THAT THE OFFERINGS WILL BE ERROR-FREE OR THAT THE OFFERINGS WILL MEET YOUR OR YOUR CUSTOMERS’ REQUIREMENTS OR THAT ALL ERRORS IN THE OFFERINGS WILL BE CORRECTED, AND WE MAKE NO WARRANTIES AND DISCLAIM ALL WARRANTIES WITH RESPECT TO ANY COMPONENTS OR APPLICATIONS CREATED OR PROVIDED BY A PARTY OTHER THAN US. THE WARRANTIES STATED IN THIS SECTION ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY US. You agree that any use or purchase of our Offerings shall not be contingent on the delivery of any future functionality or features, or dependent on any oral or written comments we make regarding future functionality or features.

6.1. Export Control. The Offerings are subject to export restrictions by the United States government and may be subject to import restrictions by certain foreign governments, and you agree to comply with all applicable export and import laws and regulations in your access to, use of, download and resales of the Offerings (or any part thereof). You shall not, directly or indirectly, import, export, re-export or transship the Offerings, services, or technical information in violation of any applicable export control and economic sanctions laws and regulations of any country having jurisdiction over the Offerings, or parties to this Agreement (“Export Laws”), including without limitation, the U.S. Export Administration Regulations and those economic sanctions regulations maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, and any other economic sanctions imposed by the U.S Government upon any country, territory, or person. You represent and warrant that (a) you and your Customer are not the subject or target of, and that you and your Customer are not located in a country or territory (including without limitation, Belarus, Russia, North Korea, Cuba, Iran, Syria, and Crimea) that is the subject or target of, economic sanctions of the United States or other applicable jurisdictions, (b) none of your data is controlled under the U.S. International Traffic in Arms Regulations or similar laws in other jurisdictions, and (c) you will refrain from referring Proposed Leads that could be suspected of engaging in activities that would be illegal under U.S. laws and/or Export Laws. You agree not to use or provide the Offerings for any prohibited end use, including to support chemical, biological or nuclear weapons, or missile technology, or military-intelligence, without the prior permission of the U.S. government. You agree to comply with all applicable Export Laws and will indemnify, defend, and hold us harmless from any claim against us due to your violation or alleged violation of the Export Laws.

6.2. Conduct. You represent, warrant and agree that you maintain a code of conduct that requires all personnel performing activities pursuant to this Agreement to conduct themselves in compliance with the highest standards of business ethics and integrity. Either party is committed to observing applicable anti-corruption laws of the countries in which it operates, including, but not limited to, the United States Foreign Corrupt Practices Act (FCPA). You represent and warrant that (a) you will conduct your business activities in a legal and ethical manner; (b) you have submitted and will submit complete and truthful information in connection with this Partnership and all referrals; (c) you will submit all filings and obtain any approvals that may be necessary for you to perform your obligations under this Agreement, (d) you will commit no act that would reflect unfavorably on Katalon; (e) you and your officers, directors and other principals are not a Restricted Party, and (f) you will comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with your performance of this Agreement, including without limitation, privacy, anti-spam, advertising, copyright, trademark and other intellectual property laws. You acknowledges that any sums paid to you under this Agreement are for your own account and that, except as appropriate to carry out your duties set forth herein in a legal manner, you did not have any obligation to, and will not, directly or indirectly, give, offer, pay, promise to pay, or authorize the payment of money or anything of value to any other person in connection with the performance of your referral activities hereunder. In particular, without limitation, you agree not to take any actions that would cause you or Katalon to violate the United States Foreign Corrupt Practices Act or any other anti-bribery law. You shall promptly notify us of any actual or potential violation of the foregoing or any investigation, audit, notice, subpoena, demand or other communication (whether oral or written) from any governmental authority regarding your actual or potential violation of the foregoing.

6.3. U.S. Government End-Use Provisions. The following applies to all acquisitions of the Offerings and Documentation by or for the U.S. government or by any prime contractor or subcontractor under any contract, grant or other activity with the U.S. government. The Offerings and Documentation and services utilizing the Offerings and Documentation provided under this Agreement are “commercial items” as that term is defined at 48 C.F.R. 2.101 consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and other applicable acquisition regulations and are provided to the U.S. Government only as a commercial item. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202, all U.S. Government users and licensees acquire the Offerings and its associated services and Documentation with only those rights and subject to the restrictions set forth in this Agreement. Notwithstanding the foregoing, the Offerings and its associated services and Documentation may not be acquired by the U.S. government pursuant to a contract incorporating clauses prescribed by FAR Subpart 27.4 or DFARS Subpart 227.4.

6.4. Books and Records. You will maintain true, accurate, and complete books and records with respect to all transactions and asset disposals with respect to your performance of obligations under this Agreement, including without limitation records of payments made by or to, and expenses incurred by, you in relation to this Agreement. You shall maintain such books, records, and accounts during the Term of this Agreement and for a period of two (2) years thereafter (or such longer period as may be required by applicable law) and permit us, at our own cost and subject to not less than 10-day advance notice, to inspect and audit such books and records to examine your compliance with this Agreement.

7.1. Our Indemnification. We will defend you, your Affiliates and their respective officers, directors, employees and agents (collectively, the “Partner Indemnitees”), against any claim, demand, suit or proceeding made or brought against any of the Partner Indemnitees by a third party alleging that the Offerings infringe or misappropriate such third party’s intellectual property rights (a “Claim Against Partner”), and will indemnify the Partner Indemnitees from any damages (including reasonable attorney fees and costs) finally awarded against any of the Partner Indemnitees as a result of, or for amounts paid under a court-approved settlement of, a Claim Against Partner. If a Claim Against Partner is brought or is likely, in our sole opinion, to be brought, we will, at our option and expense (a) obtain the right for you to continue using the Offering; (b) replace or modify the affected Offering so that it becomes non-infringing; or (c) upon notice to you, terminate this Agreement or your use of the affected Offerings, provided that in the case of subsection (c) we will promptly refund to you the prorated portion of any unearned pre-paid subscription fees paid hereunder for the affected Offerings. Our obligations in this section do not apply to: (i) any products, services, technology, materials or data created or provided by a party other than us, (ii) any part of the Offerings made in whole or in part in accordance to your specifications, (iii) any modifications not made by us, (iv) any combination with other products, processes or materials not provided by us (where the alleged damages, costs or expenses arise from or relate to such combination), (v) where you continue the allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) your use of the Offerings not strictly in accordance with this Agreement or any Documentation ((i) through (vi), the “Excluded Claims”).

7.2. Your Indemnification. You will defend us, our Affiliates and their respective officers, directors, employees and agents (collectively, the “Katalon Indemnitees”) against any claim, demand, suit or proceeding made or brought against any or all of the Katalon Indemnitees by a third party arising out of or attributable to the Excluded Claims, and will indemnify the Katalon Indemnitees from any damages, reasonable attorney fees and costs finally awarded against the Katalon Indemnitees as a result of, or for any amounts paid under a court-approved settlement of an Excluded Claim.

7.3. Indemnification Procedure. Each party’s obligation to indemnify the other party is conditioned on the party seeking indemnification: (a) promptly notifying the indemnifying party in writing of any claim, suit or proceeding for which indemnity is claimed, provided that failure to so notify will not remove the indemnifying party’s obligation except to the extent it is prejudiced thereby, (b) allowing the indemnifying party to solely control the defense of any claim, suit or proceeding and all negotiations for settlement; provided that the indemnifying party shall not settle any claim that requires the indemnified party to admit fault without the indemnified party’s prior written consent (such consent not to be unreasonably withheld or delayed), and (c) giving the indemnifying party reasonable assistance in the defense and settlement of any claim, suit or proceeding for which indemnity is claimed.

7.4. Sole Remedy. The foregoing indemnity obligations state the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this section.

IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY UNDER THIS AGREEMENT OR OTHERWISE, REGARDLESS OF THE FORM OF CLAIM OR ACTION: (I) IN AN AMOUNT THAT EXCEEDS THE TOTAL AMOUNT PAID BY THE PARTY MAKING THE CLAIM TO THE OTHER PARTY IN THE PRECEDING TWELVE (12) MONTHS; OR (II) FOR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR INDIRECT DAMAGES OR COSTS (INCLUDING WITHOUT LIMITATION, LOSS OF GOODWILL OR PROFIT, BUSINESS INTERRUPTION, LOSS OF BUSINESS) IN CONNECTION WITH THE OFFERINGS OR THIS AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS. The limitations of liability set forth in this paragraph will not apply to: (a) each party’s violation of the other party’s intellectual property rights; (b) your payment obligations (if any); (c) a party’s liability related to (i) its indemnification obligations, (ii) its material breach of its confidentiality obligations, and/or (iii) gross negligence or intentional misconduct, or (d) any obligation where the applicable Law does not allow the limitation(s) thereof. The parties hereby acknowledge that the provisions of this paragraph allocate the risks under this Agreement and the applicable Order which are acknowledged and agreed by and between you and us, and our pricing reflects this allocation of risk and the limitation of liability specified herein.

We may modify the terms and conditions of this Agreement from time to time, with notice to you in accordance with the provision on Notices below or by posting the modified Agreement on our website; provided, however, any modifications to this Agreement will take effect at the next renewal of the Term and will automatically apply as of the renewal date unless you elect not to renew. Notwithstanding the foregoing, in some cases (e.g., to address compliance with laws, as necessary for new features, or to update Partner Program Terms) we may specify that such modifications become effective during your then-current Term. If the effective date of such modifications is during your then-current Term and you object to the modifications, then (as your exclusive remedy) you may terminate this Agreement. To exercise this right, you must provide us with notice of your objection and termination within thirty (30) days of us providing notice of the modifications. For the avoidance of doubt, any Order is subject to the version of this Agreement in effect at the time of the Order.

10.1. Term. The term of this Agreement will continue for one year from the Effective Date and is subject to auto-renewal in accordance with this Agreement (“Term”).

10.2. Termination for Convenience. Either party may terminate this Agreement for convenience at any time for any reason by providing the other party not less than thirty (30) days’ prior written notice.

10.3. Other Termination. A party may terminate this Agreement or an Order (i) if the other party commits any material breach of this Agreement or such Order and does not remedy the material breach within thirty (30) days after the date that it receives notice of the breach or (ii) in the event of a material breach that is not capable of being cured by the other party. This Agreement may be terminated by either party immediately upon written notice, in the event that: (a) the other party files a petition, in bankruptcy, seeking any reorganization, arrangement, composition, or similar relief under any law regarding insolvency or relief for debtors, or makes an assignment for the benefit of creditors; (b) a receiver, trustee, or similar officer is appointed for the business or property of such party; or (c) the other party adopts a resolution for discontinuance of its business or for dissolution. Notwithstanding other provision hereunder, Katalon may immediately terminate this Agreement in the event the Partner fails to make any payments when such payments are due. Termination of an Order shall not be deemed a termination of this Agreement. Termination of this Agreement shall, however, terminate all outstanding Orders.

10.4. Auto-Renewal. To ensure that you will not experience any interruption or loss of services, the Partnership includes an automatic renewal option by default, according to which, unless you notify us of your intention not to renew at least thirty (30) days prior to its expiration, the Term will automatically renew upon the end of the then applicable Term for additional one-year period. Unless specified in an applicable Order, all renewals (a) are subject to the applicable products or services continuing to be offered on the Offerings, (b) will be charged at the then-current prices for the applicable Offerings, (c) will exclude any discount or other promotions offered during the prior Term, and (d) are subject to any changes in usage policies, usage limits or other conditions on the Offerings.

10.5. Effect of Termination. Upon any termination or expiration of this Agreement, either party shall cease to carry out any activities under the Partnership or make use of the Documentation or any of the Marks and Materials of the other party. Each party shall promptly return or destroy all Confidential Information of the other party in its possession, except that each party may keep a copy of the other party’s Confidential Information for archival purposes, or otherwise in accordance with their respective internal recordkeeping procedures, or in compliance with applicable laws, and will not be required to delete or destroy any copies maintained in its normal-course back-up media. All rights and obligations of the parties which by their nature are reasonably intended to survive such termination or expiration will survive termination or expiration of this Agreement and each Order. Subject to the foregoing and to any rights or obligations which have accrued prior to the termination, neither party shall have any further obligation to the other party under this Agreement.

10.6. No Assurances. You have no expectation and have received no assurances that your business relationship with us will continue for any specified time beyond the term of this Agreement, that any investment in the promotion of the Offerings will be recovered or recouped, or that it will receive any anticipated amount of profits by virtue of this Agreement. Neither party shall be liable to any other damages, indemnity, or compensation solely on account of the termination or expiration of this Agreement with or without cause as provided herein, whether such damages, indemnity, or compensation might be claimed for loss through loss of investments, loss of present or prospective profits, loss of goodwill or any other loss caused by termination or expiration of this Agreement howsoever arising, and whether foreseeable or otherwise. However, termination or expiration of this Agreement, howsoever arising, shall not prejudice in any way any rights of a party with regard to any antecedent breaches by the other party which occurred on or before the date of termination or expiration, as the case may be.

11.1. Assignment. Neither this Agreement nor any rights or obligations under this Agreement may be assigned or otherwise transferred by either party without the prior written consent of the other party; provided that, such prior written consent is not required for any assignment by either party to its Affiliates or to any successor of substantially all of its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assign.

11.2. Force Majeure. Nonperformance of either party, except for the making of payments, shall be excused to the extent that performance is rendered impossible by strike, fire, flood, earthquake, governmental acts or orders or restrictions, cyber-attacks, information security and data breaches caused by third parties, failure of cloud services, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of such party (collectively, “Force Majeure Events”). The party affected by a Force Majeure Event will take all reasonable actions to minimize the consequences of any such event.

11.3. Notice. All notices, consents and other communications hereunder shall be provided in writing and shall be delivered personally or by email or registered or certified mail (return receipt requested) to the parties at the addresses set forth on the Partnership Registration Form (or such other address as may have been furnished by or on behalf of such party by like notice); provided that, for any notices sent to us, a copy of the notice will be sent to legal@katalon.com. The parties hereby agree that any electronic communication will satisfy any applicable legal communication requirements, including that such communications be in writing. Communications sent by email shall be deemed delivered upon dispatch. Communications sent by registered or certified mail shall be deemed delivered upon receipt.

11.4. Relationship of Parties. The relationship between the parties to this Agreement is and shall be that of independent contractors. Nothing contained in this Agreement shall be construed to (a) give either party the power to direct and control the day-to-day activities of the other; or (b) constitute the parties as partners, agents, joint venturers, co-owners or otherwise as participants in a joint undertaking.

11.5. Injunctive Relief. Nothing contained in this Agreement shall deny either party the right to seek immediate injunctive or other equitable relief from a court of competent jurisdiction: (a) in the context of a bona fide emergency or prospective irreparable harm to preserve the status quo pending resolution of a dispute between the parties or (b) where a party alleges or claims a violation of any agreement regarding intellectual property, confidential information or noninterference. Such an action may be filed and maintained notwithstanding any ongoing discussions between the parties or any ongoing arbitration proceeding.

11.6. Additional Partner Terms. Additional terms and conditions specific to the Partner Type (e.g., Solution Partner or Technology Partner) designated in the Partnership Registration Form are set forth in the Addendum (the “Additional Partner Terms”), and such particular Additional Partner Terms will apply in addition to this Agreement.

11.7. Governing Law. This Agreement shall be governed by the laws of the State of Georgia, USA, without regard to the conflicts of law provisions of any jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. To the extent that any lawsuit is permitted under this Agreement, the parties hereby expressly consent to the personal and exclusive jurisdiction and venue of the state and federal courts located in Fulton County, Georgia, USA (to the extent not addressed by arbitration below, if any).

11.8. Dispute Resolution. In the event of any dispute, claim, or controversy in connection with this Agreement (collectively, “Disputes”), each party’s senior representatives will, in good faith, attempt to resolve the Dispute. If the parties are unable to resolve the Dispute within thirty (30) days or within such other time period as the parties may agree in writing, then the parties may commence binding arbitration under JAMS’ Comprehensive Arbitration Rules and Procedures. The parties will share equally the fees and expenses of the JAMS arbitrator. The arbitration will be conducted by a sole arbitrator mutually agreed to between the parties or, failing that, by JAMS under its then prevailing rules. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The arbitrator will have the authority to grant specific performance or any other equitable or legal remedy, including provisional remedies. Each party will be responsible for its own incurred expenses arising out of any dispute resolution procedure. Any arbitration proceedings will take place in Fulton County, Georgia, USA.

11.9. Amendment; Entire Agreement; No Waiver. There are no third-party beneficiaries to this Agreement. Except as otherwise expressly set forth herein, no amendment or modification of any provision of this Agreement will be effective unless it is in writing, references and clearly states the intention to amend this Agreement and is signed by authorized representatives of the parties. You may not use a purchase order or other instrument not issued by Katalon to modify or supplement this Agreement, and all such attempted modifications or additions to this Agreement in any such purchase order or instrument shall be void and of no effect, even if accepted or signed by both parties. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all previous understandings, communications, statements, agreements, and arrangements with respect to the subject matter hereof, whether written or oral. Any waiver of the provisions of this Agreement or of a party’s rights or remedies under this Agreement must be in writing referencing this Agreement to be effective. Failure, neglect, or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time shall not be deemed to be a waiver of such party’s rights under this Agreement and shall not prejudice such party’s right to take subsequent action. A party’s waiver of the performance of any covenant or any breach is not to be construed as a waiver of any succeeding breach or of any other covenant.

11.10. Severability. If any term, condition, or provision in this Agreement is found to be invalid, unlawful, or unenforceable to any extent, the invalid, unlawful, or unenforceable term, condition or provision shall be severed from the remaining terms, conditions, and provisions, which shall continue to be valid and enforceable to the fullest extent permitted by law.

11.11. Counterparts; Language. The parties may execute this Agreement in several counterparts, all of which together constitute one Agreement between the parties. The language of this Agreement, any Addendum and all Orders is English. All contract interpretations, notices and dispute resolutions shall be in English. Translations of any of these documents are not to be construed as official or original versions of the documents.

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with, the specified entity. For purposes of this definition, “control” means direct or indirect ownership of more than fifty percent (50%) of the voting interests of the subject entity.

“Agreement” means this partnership agreement comprising the Partnership Terms and Conditions, Partnership Registration Form, and the Partner Program Terms.

“Confidential Information” means any material or information disclosed by either party to the other party either directly or indirectly, relating to this Agreement, in writing, orally or by inspection of tangible objects (including without limitation material or information relating to such party’s research, development, know-how, products, product plans, services, customer, customer lists, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, marketing, finances, or other business information or trade secrets), which is designated as “Confidential,” “Proprietary” or some similar designation, or information the confidential or proprietary nature of which is reasonably apparent under the circumstances. Confidential Information shall not include information which (a) becomes a part of the public domain through no act or omission of recipient; (b) was in recipient’s lawful possession prior to the disclosure by discloser and had not been subject to limitations on disclosure or use, as shown by recipient’s files existing at the time of disclosure; (c) is independently developed by recipient’s employees or independent contractors who have not had access to the Confidential Information; or (d) is lawfully disclosed hereafter to recipient, without restriction, by a third party who did not acquire the information directly or indirectly from discloser.

“Customer” means a customer for your products and/or services and who has or will potentially have a separate subscription to the applicable Offerings and whose use of the Offerings is subject to the Customer Terms of Use.

“Customer Terms of Use” means the Katalon Customer Terms of Use that applies to a Customer’s use of the Offerings, currently located at https://katalon.com/terms

“Documentation” means our standard published documentation for the Offerings, including any usage guides and policies, currently located at https://docs.katalon.com/

“Effective Date” means the last signature date in the applicable Partnership Registration Form.

“Marketing Materials” means any marketing, promotional, or ancillary information, document or materials used for marketing and providing details of the Offerings to the Customer.

“Marks” means the logos, designs, trade names, trademarks, service names and service marks supplied by either party to the other for use as part of its activities under this Agreement.

“Materials” means Marketing Materials and Training Materials, collectively.

“Net Revenue” means any payments received by Katalon from a Qualified Referral under the subscription agreement between Katalon and the Qualified Referral for the Offering(s) within 12 months of the execution of such agreement, less any taxes, subsequently credited charges, write-offs, refunds or charge backs. For the avoidance of doubt, Net Revenue does not include any amounts received for renewals, professional services, support services, training services, or for products or services provided by a third party, nor does it include amounts that are owed by the Qualified Referral but have not actually been received by Katalon or amounts that are returnable or refundable to Qualified Referral.

“Offerings” means the products and services specified in an Order provided by Katalon and subject to the Partnership between Katalon and you. All use of the Offerings shall be subject to the Customer Terms of Use.

“Order” means Katalon’s applicable order form(s) or other ordering document approved by Katalon that specifies, as applicable, mutually agreed upon the Offerings that you, directly or on your Customer's behalf, are ordering from us, and the amount or rate you will be charged, the billing terms, applicable currency, and form of payment.

“Partner Program Terms” means specific program terms applicable to certain partner program which are set forth on the Partnership Registration Form as may be updated from time to time.

“Restricted Party” means any entity included in any restricted party lists of the U.S. Government or located in any country on any embargoed list maintained by the U.S. Government.

“Taxes” means any applicable taxes, levies, duties, or other similar exactions imposed by a legal, governmental, or regulatory authority in any applicable jurisdiction, including, without limitation, sales, use, value-added, consumption, communications, or withholding taxes.

“Training Materials” means training information, instructions, guidance or other materials regarding the Offerings that Katalon provides to you as may be necessary to properly perform your obligations under this Agreement.

These specific Additional Partner Terms, which consist of the provisions below and the program details provided by us on the Partner portal from time to time, will apply with respect to your particular Partner Type as designated in the Partnership Registration Form, in addition to the Partnership Terms and Conditions. All defined terms used herein but not otherwise defined shall have the meanings given to them in the Partnership Terms and Conditions.

The following additional terms and conditions apply if you are registered as a Solution Partner.

Subject to the terms and conditions of this Agreement, we hereby grant you, as a Solution Partner, a limited, non-exclusive, non-transferable, non-sublicensable right to distribute the Offerings to Customers pursuant to agreements between you and Customers (“Reseller Agreement”). You shall not appoint sub-distributors, resellers, or other third parties to make available the Offerings to Customers.

You shall execute an Order under the form provided by us for the Offerings you distribute to a Customer. Each executed Order is subject to and be governed by the terms of this Agreement, and in the event of any conflict between this Agreement and those of any Order, this Agreement will control (unless such Order is intended to control), and the terms of an Order and this Agreement will prevail over any conflicting provision in any purchase order or any other instrument regardless of execution by the parties.

You shall use commercially reasonable efforts to protect and assist in the enforcement of our intellectual property rights in the Offerings, Materials, and Documentation and shall promptly report to us any known or suspected infringement or other violation of our intellectual property rights of which you become aware.

You shall notify us whenever there is a change in the relationship with a Customer (e.g., termination) that affects the parties’ obligations under this Agreement. In case you purchase and use the Offerings as part of the services that you provide to your Customers in respect to your products and services, such use will be governed under the Customer Terms of Use.

In addition and without prejudice to relevant provisions under this Agreement, upon termination of this Agreement and subject to the Customer Terms of Use, each Customer’s right to access and use the Offerings shall continue in accordance with such Customer’s subscription terms to the Offerings.

We will provide support directly to Customers as per our applicable support policy. You may provide additional support to Customers under the Reseller Agreement or any other agreements between you and such Customers, but you are solely responsible for the same.

7.1. Fees. You shall pay us the fees for the Offering(s) as set forth in the applicable Order. Unless otherwise set forth in an applicable Order, payment shall be due within thirty (30) days of receipt of invoice and shall be made in United States dollars, and invoices may be submitted via email to the email address(es) you designate herein. Subject to any payment dispute (below), payment obligations are non-cancelable and all fees, once paid, are non-refundable. You agree (a) that any and all discounts, incentives, and promotional pricing (if any) offered by Katalon are conditioned upon your timely payments of all fees due hereunder; (b) to pay a late charge of one and one-half percent (1.5%) per month (or part of a month), or the maximum lawful rate permitted by applicable law, whichever is less, for all amounts, not subject to a good faith dispute (below), and not paid when due. Katalon may suspend or terminate the use of the Offerings if we do not receive the payment from you.

7.2. Taxes. All fees are exclusive of Taxes. Amounts payable to us under this Agreement are payable in full to us without deduction and are net of Taxes. You will pay all Taxes associated with the Offerings and this Agreement, excluding any taxes based on our net income, property, or employees. We reserve the right to invoice for Taxes if required under the applicable taxing jurisdiction unless you provide us with an exemption certificate.

7.3. Payment Disputes. You will notify us in writing within thirty (30) days of the date we bill you for any fees that you wish to dispute. Where you are disputing any fees, you must act reasonably and in good faith and will cooperate diligently with us to resolve the dispute. We will not charge you a late fee or suspend the provision of the Offerings for unpaid fees that are in dispute, unless you fail to cooperate diligently with us, or we determine the dispute is not reasonable or not brought in good faith by you.

The following additional terms and conditions shall apply if you are registered as a Technology Partner.

Subject to the terms and conditions of this Agreement, we hereby grant you, as a Technology Partner, a limited, non-exclusive, non-transferable, non-sublicensable right to integrate the Offerings into your products and/or services (“Integrated Products”) in accordance with the Documentation and our guidelines and instructions.

You shall configure your interface in the Integrated Products for their integration with the Offerings in accordance with the Documentation and our guidelines and instructions. The parties shall reasonably cooperate and make available information and assistance in connection with their activities regarding this integration.

Once the initial integration activities are complete, the parties will test and validate the integration of the Offerings with the Integrated Products and ensure they meet the criteria set forth in the Documentation and Katalon’s guidelines and instructions (the “Validation Process”). Thereafter, parties will conduct the Validation Process whenever (a) either party intends to issue an update or change that is likely to affect the integration of the Offerings and the Integrated Products, or (b) one party reasonably requests the Validation Process. In order to successfully complete the Validation Process, the parties will meet and conduct a mutual demonstration of the integration between the Offerings and Integrated Products, which demonstration may be performed via remote access or via a mutually agreed upon alternative method. Upon successful completion of the Validation Process, each party shall confirm in writing to the other party that the integration has been validated. You shall not make available the Integrated Products for use by anyone else until you have successfully completed the Validation Process and the parties have confirmed validation in writing. The parties acknowledge and agree that the Validation Process is conducted in a controlled environment and that we make no commitments to you or anyone else that the successful completion of the validation process will necessarily lead to the successful performance of the Offering with the Integrated Products.

Subject to the terms and conditions of this Agreement, you grant us a non-exclusive, non-transferable license during the term of this Agreement to access a limited portion of the Integrated Products solely for our training, evaluation, and integration of the Integrated Products with the Offerings. We may not grant any license of the Integrated Products to any third party as part of such non-production use.

5.1. We, at our sole discretion, may refer a lead to you for potential sales of products and/or services (a “Katalon Proposed Lead”) by giving you a written notice. If the Katalon Proposed Lead (a) is not a potential customer that you are already engaging, and (b) has not been referred or registered by any other party, you shall send us a written approval acknowledging our registration of such Katalon Proposed Lead. If the Katalon Proposed Lead does not meet these criteria, you will promptly notify us, providing a reasonable explanation why the lead is not considered qualified.

5.2. You may, at your sole discretion, contact and seek business opportunities with Katalon Proposed Leads. A Katalon Proposed Lead becomes a qualified referral (“Katalon Qualified Referral”), making us eligible for a Katalon Referral Commission, only if: (a) our registration of such Proposed Lead has been approved by you in writing; (b) we have not entered into any agreement for a resale of your products and/or service with such Katalon Proposed Lead; and (c) such Katalon Proposed Lead enters into an agreement with you for purchase of your products and/or services.

5.3. You will pay us a commission equal to a percentage indicated in the Partnership Registration Form of any payments you receive from each Katalon Qualified Referral for your products and/or service. This commission will be paid within thirty (30) days of your receipt of full payment from the referral. If this Agreement is terminated or expired (except due to our breach), you will pay us the commission under this section for the Katalon Qualified Referral determined prior to the date of termination or expiration of this Agreement.

You may refer a lead to us in order for us to sell our Offerings (a “Proposed Lead”) by filling in the Opportunity Registration Form we provide or as available on our website. You shall not refer a direct competitor of Katalon or any entity being a Restricted Party as a Proposed Lead. If the Proposed Lead (a) is not a potential customer that Katalon is engaging, and (b) has not been referred or registered by any other party, we will send you a written approval following the submission of the Opportunity Registration Form acknowledging your registration of such Proposed Lead. If the Proposed Lead has been previously identified by Katalon or referred by another party, you will be promptly notified and shall not be entitled to receive a Referral Commission (as defined below).

We may, at our sole discretion, contact and seek business opportunities with Proposed Leads.

A Proposed Lead becomes a qualified referral (“Qualified Referral”), and you become eligible for a Referral Commission only if: (a) your registration of such Proposed Lead has been approved by us in writing; (b) you have not entered into any agreement for sales of Offerings with such Proposed Lead; and (c) such Proposed Lead enters into an agreement with us for sales of our Offerings within ninety (90) days from the date of the written approval of such Proposed Lead registration.

You will be paid a commission equal to a percentage indicated in the Partner Program Terms of the Net Revenue for each Qualified Referral (the “Referral Commission”).

Referral Commission will be paid (i) after we fully receive the full Net Revenue from a Qualified Referral, and (ii) within thirty (30) days upon our receipt of your invoice for such Referral Commission amount. In case this Agreement is terminated or expired, except in the event of termination for your breach, Katalon will only pay you the Referral Commission on the Net Revenue received within 30 days following termination of this Agreement for the Qualified Referral determined prior to the date of termination or expiration of this Agreement.

This Support Policy describes the practices and policies of Katalon, Inc. (“Katalon”) with regard to its provision of support to customers that have entered into an agreement for the Katalon Studio Enterprise Version (“KSE”) and Runtime Engine (“RE”). Capitalized terms used but not defined herein shall have the meaning ascribed to them in the agreement between your or your organization (“Customer”) and Katalon. The support services described in this Support Policy are separate from Katalon professional services and Katalon training services.

Number of tickets: Unlimited (one by one basis)
Helpdesk support: Yes
Live chat: No
Telephone support: No
Response time: See below

KSE and RE subscribers will be provided with helpdesk accounts for product support. The number of helpdesk accounts is equal to the number of active valid licenses that Customer acquired. There is no limit on the number of KSE and RE support requests Customer can submit on our Support Portal (https://support.katalon.com), but the ticket will be processed on a one by one basis.

Below are the two types of requests that may be submitted:

• Error Reporting: For requests related to errors. An “error” means a material failure of KSE version or RE to perform substantially in accordance with functional specifications published in its documentation. Submitted errors will be verified by the Katalon development team. A resolution schedule will be provided and regularly updated.
• Features Suggestion: Customers may submit suggestions to add features to KSE. Katalon will consider feature suggestions and assess them based on the evaluation by the product development team. Katalon will inform the submitter of the status of the suggestion.

Customer may submit, view, and manage support requests on the Support Portal 24/7.

Katalon shall use commercially reasonable efforts to respond to Customer’s reporting of an error with the response time below:

Katalon’s support team will review and investigate the reported issue and act to resolve them. To help Katalon team troubleshoot and assist with any issues, Customer shall provide as much detailed information as possible — including execution logs, error logs, test artifacts, documentation — to reproduce the issue. Katalon’s support team will use commercially reasonable efforts to reproduce the issue. In case the issue cannot be reproduced, Customer will receive notifications from the Katalon support team for further discussion.

Below are the three levels of error prioritization:

• “Critical” level means the main functions or critical features of the Katalon software are inoperable. The issue cannot be bypassed with workarounds.
• “High” level means the main functions or critical features of the Katalon software still work with workarounds despite the error.
• “Medium” level means an error that affects functions in the Katalon software that are not main functions or critical features; these could be errors that are annoying or/ and irritating relating to speed of operation, style, user interfaces, or reports.

Katalon is not responsible for:

• problems arising out of use of the KSE or RE that is improper or inconsistent with the documentation or your license agreement for the KSE or RE;
• requests to create test scripts or custom keywords;
• problems arising out of changes from third-party services and products;
• failure by you to fulfill any of the following: (a) give Katalon reasonable access to and use of the KSE and RE and your environment as may be necessary to diagnose and repair any errors; (b) permit Katalon to use and access the log files generated by KSE or RE; (c) use reasonable efforts to resolving issues with the KSE or RE using the online resources described above before contacting Katalon with a support request; (assure proper hardware configuration and installation for KSE or RE and support and maintain the hardware, software, and systems on which KSE or RE is installed; and (e) adequately back-up data and systems related to KSE and RE;
• issues in versions of the KSE and RE other than the then-current version or the version immediately prior; or
• errors or defects that are not reproducible by Katalon or that do not materially affect the operation of the KSE or RE.

This Reseller Agreement (“Agreement”) by and between Katalon Inc., a Delaware corporation (‘‘Katalon’’), and the applicable Reseller (“Reseller”). If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer or such entity to this Agreement; (ii) you have read and understand this Agreement; and (iii) you agree to this Agreement on behalf of the party that you represent. By placing an Order for Katalon’s Offerings to resell to a Customer, you indicate your assent to be bound by this Agreement. If you do not agree to the terms of this Agreement, do not place an Order to resell the Katalon Offerings.

In addition to any capitalized terms defined elsewhere in the Agreement, the following capitalized terms have the following meanings:

• “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with, the specified entity.
• “Customer” means an entity in the Territory who licenses the Products or subscribes to Subscription Services from Reseller.
• “Documentation” means Katalon’s published documentation related to the use and operation of the Offerings.
• “Katalon Technology” means Materials, Offerings (and all technology, data, information, or other content embodied therein), and Documentation.
• “Materials” means Marketing Materials and Training Materials, collectively.
• “Offerings” means Katalon’s Products, Subscription Services or both as further identified above.
• “Products” means Katalon’s software products as further identified above.
• “Subscription Services” means the subscription services provided by Katalon as further identified above.

License and Distribution Grant. Subject to the terms and conditions of this Agreement, Katalon hereby grants Reseller a limited, nonexclusive, nontransferable, non-sub-licensable license in the Territory to distribute and license the Products to Customers pursuant to a Customer Agreement. “Customer Agreement” means a written agreement between Reseller and a Customer meeting the requirements set forth in this Exhibit and under which Products are licensed by Reseller to the Customer. Reseller will not provide access to the Products to any Customer who does not have a Customer Agreement. Reseller may not appoint subdistributors, resellers or other third parties to make available the Products to Customers. Katalon also provides a copy of the Documentation which Reseller may use in connection with the Products.

Order Process. “Order” used in this Exhibit means a written order document referencing this Agreement and executed by the parties for the use of the Products by a Customer and that meets the requirements of this Agreement. Katalon and Reseller shall execute an Order for each license of Products to a Customer. Each Order will contain (i) a reference to this Agreement; (ii) the Products and fees; (iii) Customer address; (iv) delivery date; (v) the length of the initial license term for the applicable Customer Agreement; and (vi) other terms and conditions applicable to the license. Each executed Order is subject to and be governed by the terms of this Agreement, but the parties may agree in any Order on specific terms for such Order that will have precedence over this Agreement. No Order is valid unless and until it executes the Order. Reseller may not make available the Products to a Customer unless and until Katalon and Reseller execute an Order for the license.

Customer Subscription Agreements. Prior to a Customer receiving access to Katalon Offerings, the Customer must enter into Katalon’s standard agreement (“Customer Agreement”), the current version of which are available at Katalon’s website or is otherwise provided by Katalon to Reseller. End Customer will register for an account and enter into the Customer Agreements via the procedure on the Katalon website. All Katalon Customer Agreements will be between Katalon and the Customer, except that Customers will pay Reseller for the Katalon Offering. In its dealings with Customers, Reseller shall not override or modify the terms of the Katalon Customer Agreement.

Reseller is responsible for any breach of the Customer Agreement, or any other unauthorized use or dissemination of the Products, by any user accessing the Products. Reseller shall use reasonable efforts to protect and assist in the enforcement of Katalon’s intellectual property rights in the Katalon Technology and shall promptly report to Katalon any known infringement or other violation of such Katalon’s intellectual property rights of which Reseller becomes aware.

Katalon shall provide support directly to Customers as described in its support policy at https://www.katalon.com/terms#support-policy.

Reseller shall notify Katalon whenever there is a change in the relationship with a Customer (e.g., termination) that affects the parties’ obligations under this Agreement.

From time to time and without incurring any liability to Reseller, Katalon may: (i) change, add to or delete from the list of Products available, (ii) change or terminate the level or type of support that Katalon offers to Reseller upon 30 days’ written notice, or (iii) request that Reseller purchase Product licenses through another Katalon distributor or other agent upon 30 days’ written notice. Any such change will not apply to (a) Customer Agreements in effect as of the effective date of the change and (b) any price proposal that has been sent by Reseller to Customer prior to the effective date of the change, provided the Order and Customer Agreement for such price proposal are executed within 90 days of the effective date of the change.

Reseller shall pay Katalon the fees set forth in the Order subject to the discount as per the partner level in the Partner Program Terms for Product licenses to Customers. Katalon will invoice Reseller as set forth in the Order. All amounts shall be paid in US dollars within 30 days of Reseller’s receipt of an invoice. Reseller shall pay Katalon interest at 1.5% per month, or the maximum rate permitted by applicable law, whichever is less, on any unpaid amount beginning on the date payment was due.

Warranty. Each party represents and warrants that it has all necessary corporate power and authority to enter into this Agreement, to perform all of its obligations hereunder.

No Conflict. Each party represents and warrants that the execution, delivery, and performance of this Agreement will not violate or conflict with any other obligations or agreements to which it is a party or with any applicable law or regulation.

Absence of Litigation. Each party represents and warrants that, as of the Effective Date, there is no pending litigation against it affecting its obligations under this Agreement.

Disclaimer of Warranties. Except as set forth in this Agreement, Katalon makes no other representation or warranty of any kind, directly or indirectly, express or implied. Katalon expressly disclaims any implied warranties of fitness for particular purpose, merchantability, and noninfringement. Katalon does not warrant that the Offerings will be error-free or completely secure, will operate without interruption, or will meet Reseller’s or any Customer’s requirements. Reseller agrees that no representation, warranty, promise or agreement of any Katalon representative shall be binding on Katalon unless it is expressly included in this Agreement.

By Katalon. Katalon shall defend Reseller and its Affiliates against any third party claim that an Offering infringes any U.S. or Canada patent, copyright, trade secret, trademark or other intellectual property right and shall pay any award of damages and costs made against them in a final judgment by a court of competent jurisdiction, or any amount in settlement, arising out of those claims. Katalon has no liability arising from or related to (i) the combination of the Offering with other products, content, data or services not provided by Katalon, if such infringement would have been avoided without such combination, (ii) the modification of the Offering by anyone other than Katalon, (iii) use of the Offering not in accordance with this Agreement or the Documentation, or (iv) failure by Reseller or its employees or agents to take all reasonable actions to prevent or mitigate losses, damages, costs and expenses, including use of the current release of the Product, if the infringement could have been avoided by the use of a current, unaltered release of the Product. If the Offering infringes, or if Katalon believes is likely to infringe, any intellectual property or proprietary right of a third party, then Reseller agrees to permit Katalon to (1) procure for Reseller the right to continue marketing, licensing or using the Offering as appliable under the terms of this Agreement; (2) replace or modify the Offering so that it is non-infringing; or if (1) or (2) are not commercially reasonable, (3) terminate the Agreement, return to Reseller the portion of the then-current prepaid but unused fees for the use of the Offering pro-rated on a monthly basis through the remainder of the applicable term (and Reseller shall return the applicable fees paid by the Customer for the same period accordingly). The foregoing states the sole and exclusive liability of Katalon and the sole and exclusive remedy of Reseller for any infringements or claims of infringement of any intellectual property right.

By Reseller. Reseller shall defend Katalon and its Affiliates from and against any third party claim arising from any breach of this Agreement by Reseller and shall pay any award of damages and costs made against them in a final judgment by a court of competent jurisdiction, or any amount in settlement, arising out of those claims.

General. The indemnifying party’s obligations shall be subject to the indemnified party: (a) promptly notifying the indemnifying party of the claim giving rise to the indemnity; (b) providing the indemnifying party with sole control and authority over the defense of such claim and all related settlement negotiations; and (c) providing the indemnifying party, at the indemnifying party’s request and expense, with all information and assistance deemed necessary or useful by the indemnifying party to defend and/or settle any such claim or action.

LIMITATION OF LIABILITY. TO THE EXTENT PERMISSIBLE UNDER APPLICABLE LAW, KATALON WILL NOT BE LIABLE FOR ANY LOSS OF USE, LOSS OF DATA, INTERRUPTION OF BUSINESS, DOWNTIME, LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. IN NO EVENT WILL KATALON’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE PAYMENTS PAID TO KATALON BY Reseller DURING THE PRECEDING TWELVE MONTHS. THE PARTIES ACKNOWLEDGE AND AGREE THAT THIS SECTION IS AN ESSENTIAL ELEMENT OF THE AGREEMENT AND THAT IN ITS ABSENCE THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.

Term. The term of this Agreement will continue for two years from the Effective Date, unless otherwise terminated by the parties in accordance with agreement. The Agreement shall automatically renew upon the expiration of this initial term for additional one year periods, unless either party elects not to renew by notifying the other party at least 60 days in advance of the next renewal period.

Termination for Convenience. Either party may terminate this Agreement for convenience at any time for any reason by providing the other party not less than 30 days’ prior written notice.

Other Termination. A party may terminate this Agreement (a) if the other party commits any material breach of this Agreement and does not remedy the material breach within 30 days after the date that it receives written notice of the breach; or (b) if the other party enters into bankruptcy or liquidation or has a receiver appointed as to substantially all of its assets, or takes or suffers any similar action in consequence of debt. Termination shall not be the exclusive remedy, and no such termination shall adversely affect any claim, right or action which the non-breaching party may have against the breaching party. notice.

Return of Information; Survival. Upon termination of the post-termination obligations described in in any Exhibits, (a) Reseller shall immediately return or destroy the Katalon Technology and all portions and copies thereof in Reseller’s possession as directed by Katalon and, if requested by Katalon, shall certify in writing as to the destruction or return, (b) Reseller may no longer market the Offerings; and (c) each party shall return to the other party any of the other party’s Confidential Information it may have. All rights and obligations of the parties which by their nature are reasonably intended to survive such termination or expiration will survive termination or expiration of this Agreement.

No Assurances. Reseller has no expectation and has received no assurances that its business relationship with Katalon will continue for any specified time beyond the term of this Agreement, that any investment in promotion of the Offerings will be recovered or recouped, or that it will receive any anticipated amount of profits by virtue of this Agreement. Reseller shall have no rights or claims against Katalon in connection with termination, expiration or non-renewal of this Agreement; in particular, without any limitation, Reseller hereby irrevocably waives any rights to severance or compensation for lost opportunities or investments to the maximum extent permissible under applicable law. Reseller acknowledges and agrees that all fees and charges are non-refundable and will not be refunded or prorated in the event of termination of this Agreement unless explicitly set forth in this Agreement.

Post-Termination. Upon termination of this Agreement the following provisions apply:

(a) Each Customer’s license to use the Products shall continue through the remainder of the Customer’s then-existing term of the Customer Agreement. Katalon will fulfill any existing Orders as of the date of termination, but a Customer’s then-existing term may not be renewed without Katalon’s prior written consent.

(b) Reseller may not grant new licenses for the Products to any person who was not a Customer as of the effective date of termination.

(c) The terms of the Agreement, including without limitation payment obligations in this Agreement, will continue to apply during this period.

Generally. Each party shall comply with all applicable laws in the performance of its obligations under this Agreement.

Export Control.

(a) The obligation of Katalon to make available any Katalon Technology or technical data under this Agreement shall be, at all times, subject to its ability to do so in a manner consistent with all applicable export control and economic sanctions laws and regulations of the United States, the European Union and all other applicable jurisdictions, including but not limited to the U.S. Department of Commerce Bureau of Industry and Security’s (“BIS”) Export Administration Regulations (“EAR”), 15 C.F.R. 730-774, and the economic sanctions programs administered by the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”), as set forth in 31 C.F.R. 500-598 and certain executive orders (collectively, “Trade Control Laws”). Reseller agrees to comply fully with all applicable Trade Control Laws in the performance of this Agreement. It shall be in the sole discretion of Katalon to refrain from being directly or indirectly involved in the provision of goods, services and/or technical data that may be prohibited by applicable Trade Control Laws. Reseller represents and warrants that all sales of Offerings and provision of technical data under this Agreement and all payments for such sales comply with the Trade Control Laws, including the terms of any relevant authorizations issued by the U.S. or other governments.

(b) Reseller represents and warrants that neither Reseller, any Affiliate of Reseller, or, Customer is included on any of the restricted party lists maintained by the U.S. Government, including the Specially Designated Nationals List and Foreign Sanctions Evaders List administered by OFAC; Denied Parties List, Unverified List or Entity List maintained by BIS; the List of Statutorily Debarred Parties maintained by the U.S. State Department’s Directorate of Defense Trade Controls; or the consolidated list of asset freeze targets designated by the United Nations, European Union, or other government in the Territory (collectively, “Restricted Party Lists”). Reseller shall immediately notify the Katalon if Reseller, any Affiliate of Reseller, or Customer becomes listed on any Restricted Party List or if Reseller’s export privileges are otherwise denied, suspended or revoked in whole or in part by any U.S. or non-U.S. government entity or agency.

(c) Reseller hereby acknowledges and confirms that, unless specifically authorized in this Agreement and under applicable Trade Control Laws, it will not sell, export, re-export, re-transfer or divert Katalon Technology or technical data that are sold or otherwise provided hereunder (including samples), directly or indirectly through third parties or otherwise, to any company or individual on the Restricted Party Lists or to any countries on any embargoed list.

Conduct. Reseller represents, warrants and agrees that it maintains a code of conduct that requires all personnel performing activities pursuant to this Agreement to conduct themselves in compliance with the highest standards of business ethics and integrity. Katalon is committed to observing applicable anti-corruption laws of the countries in which Katalon operates, including the United States Foreign Corrupt Practices Act (FCPA). Reseller accordingly represents, warrants and covenants to Katalon as follows:

(a) Reseller shall at all times strictly comply with all applicable laws concerning bribery, money laundering, or corrupt practices or which in any manner prohibit the giving of anything of value to any official, agent or employee of any government, political party or public international organization, candidate for public office, or to any officer, director, employee or representative any other organization.

(b) Reseller and any of its equity holders, partners, officers, directors, employees, representatives, and agents, have not and will not directly or indirectly, offer, promise, or pay any money, gift, or anything else of value to any government, public international organization, political party, or any employee, candidate, official, or other person acting on behalf of them for purposes of influence, inducement or securing improper advantage or commercial benefit.

(c) No payment, promise, offer or gift of the sort has been made in connection with the promotion of the business interests of Katalon.

(d) None of Reseller’s equity holders, partners, officers, directors, employees or agents is or will become an official or employee of any government, or of any department, agency or instrumentality of any government, or of any political party, or of any public international organization.

(e) Reseller has received no claim or notification of failure to comply with, any laws, regulations or industry codes.

Reseller shall promptly notify Katalon of any actual or potential violation of the foregoing or any investigation, audit, notice, subpoena, demand or other communication (whether oral or written) from any governmental authority regarding Reseller’s actual or potential violation of the foregoing.

Books and Records. Reseller will maintain true, accurate, and complete books and records with respect to all activities under this Agreement, including any payments made to third parties pursuant to this Agreement or in furtherance of the services provided to Katalon.

Non-Use and Nondisclosure. Each party shall treat as confidential all Confidential Information of the other party, shall not use such Confidential Information except to exercise its rights and perform its obligations under this Agreement, and shall not disclose such Confidential Information to any employee or third party, except to those employees, advisors or representatives of the recipient who are under a contractual or fiduciary duty of confidentiality similar in content to the provisions hereof and whom the recipient will remain responsible for hereunder (“Representatives”) and who are required to have access to such Confidential Information in order to perform the obligations under this Agreement. Without limiting the foregoing, each of the parties shall use at least the same degree of care it uses to prevent the disclosure of its own confidential information of like importance, which care shall be no less than reasonable care, to prevent the disclosure of Confidential Information of the other party.

Exceptions. The receiving party may disclose Confidential Information of the disclosing party if so required pursuant to a regulation, law, subpoena, or court order (collectively, “Compelled Disclosures”), provided the receiving party gives the disclosing party notice of a Compelled Disclosure (to the extent legally permitted). The receiving party will provide reasonable cooperation to the disclosing party in connection with a Compelled Disclosure at the disclosing party’s sole expense.

Assignment. Neither party shall transfer or assign, under any circumstances whatsoever, all or part of its rights and obligations under the present Agreement on pain of ipso jure termination of this Agreement. However, a party may assign this Agreement as a whole to any Affiliate, to any person or entity that acquires all or substantially all of the assets of the party or to successor in a merger or acquisition of all or a material part of the voting securities of the party, without first obtaining the prior written consent of the other party, provided that the assignee assumes all of the assigning party’s obligation and liabilities hereunder. Any attempt by a party to assign its rights or obligations in violation of this Section is void.

Governing Law and Language. This Agreement will be governed as to all matters, including, but not limited to the validity, construction and performance of this Agreement, by and under the laws of the State of Georgia, USA, without giving effect to conflict of laws principles thereof. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. All prices referenced in this Agreement and in any exhibit or amendment are to U.S. dollars, and all amounts will be paid in U.S. dollars. The official language of this Agreement is English, all contract interpretations, notices and dispute resolutions shall be in English and any attachments or amendments to this Agreement shall be in English. Translations of any of these documents shall not be construed as official or original versions of the documents.

Disputes.

(a) If Reseller is a company organized under a state or territory of, the United States, then all disputes regarding this Agreement will be settled exclusively in any court of competent jurisdiction located in Fulton County, Georgia. Each party hereby consents and submits to the in personam jurisdiction of such courts. Each party hereby waives any objection based on forum non conveniens and any objection to venue of any action instituted under this Agreement to the extent that an action is brought in the courts identified above.

(b) Otherwise, all disputes regarding this Agreement shall be finally resolved by binding arbitration before a single arbitrator pursuant to the then-existing Rules of Conciliation and Arbitration (“Rules”), and under the auspices, of the International Chamber of Commerce (“ICC). The arbitrator shall be knowledgeable in the chosen law and the software industry. At either party’s request, the arbitrator shall give a written opinion stating the factual basis and legal reasoning for the decision. The arbitrator shall have the authority to determine issues of arbitrability and to award damages as permitted by this Agreement. The parties, their representatives, and any other participants shall hold the existence, content, and result of arbitration in confidence. The arbitration proceedings will take place in Atlanta, Georgia, USA. Judgment on the arbitration award may be entered in any court having jurisdiction.

(c) Notwithstanding the foregoing, Katalon may, at its sole discretion, seek preliminary judicial relief in any court of competent jurisdiction (including, but not limited to, preliminary injunctive relief) as necessary to enforce its rights in its intellectual property.

Except for the obligation to make payments, nonperformance of either party shall be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the control and not caused by the negligence of the nonperforming party. There are no third-party beneficiaries to this Agreement. No amendment or modification of any provision of this Agreement will be effective unless it is in writing, references and clearly states the intention to amend this Agreement, and is signed by authorized representatives of the parties. Neither party may use a purchase order or other ordering documents (“PO”) to modify or add to these terms and conditions, and all such attempted modifications or additions to this Agreement in any PO shall be void and of no effect, even if accepted or signed by both parties; provided however, the parties may expressly modify the terms and conditions of this Agreement through a PO as follows: (i) the parties must explicitly reference the section of this Agreement to be modified and clearly state the intention to amend this Agreement; and (ii) the applicable PO must be signed in writing by an authorized representative of each of the parties. Any such permitted modification in accordance with this section will be effective only with respect to the applicable PO and will not apply to any other POs. Except as expressly set forth in this section, all POs that are accepted by Katalon are accepted expressly subject to the terms and conditions of this Agreement without regards to any additional or conflicting terms therein. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersede all previous understandings, communications, statements, agreements, and arrangements with respect to the subject matter hereof, whether written or oral. No failure or delay by either party to exercise any right, power, or remedy constitutes a waiver of that right, power, or remedy. A party’s waiver of the performance of any covenant or any breach is not to be construed as a waiver of any succeeding breach or of any other covenant. If any provision of this Agreement requires judicial interpretation, this Agreement is not to be more strictly construed against one party than the other. If any provision of this Agreement is declared invalid by a court of competent jurisdiction, the provision will be ineffective only to the extent of the invalidity, so that the remainder of that provision and all remaining provisions of this Agreement will continue in full force and effect. The parties may execute this Agreement in several counterparts, all of which together constitute one Agreement between the parties.