Katonic Master Subscription Agreement
This Master Subscription Agreement (this “Agreement”) is entered into by and between the entity or person placing an Order for or accessing the Software (“Customer” or “you”) and the Katonic Contracting Entity specified in Section 23 (Katonic Contracting Entity, Governing Law) below (also referred to as “Katonic”).
The “Effective Date” of this Agreement is the date which is the earlier of (a) Customer’s initial access to the Software through any online provisioning, registration, or order process or (b) the effective date of the First Order. Katonic may modify this Agreement from time to time as permitted in Section 14 (Modifications).
This Agreement supersedes any other agreement (including any click-through or electronic agreements within the Software) between Katonic and Customer with respect to the Software. This Agreement applies to all future purchases of Katonic software and services by Customer unless expressly agreed otherwise by Customer and Katonic.
Section 1 - Definitions
1.1 Account Country: means the country associated with Customer’s account. If the Customer has provided a valid tax registration number for its account, then Customer’s Account Country is the country associated with its tax registration. Otherwise, the Customer’s Account Country is the country where its billing address is located.
1.2 Affiliate: means in relation to a party, any entity that directly or indirectly controls, is controlled by, or is under direct or indirect common control with such party, or which is a wholly owned subsidiary of such party, where “control” means owning, directly or indirectly, at least 51% of the equity securities or equity interests of such entity.
1.3 APIs: means any application programming interfaces to the Software specified for the
Customer’s use in the Documentation or Order.
1.4 Credentials: means user login name, passwords, accounts, license keys or other Software
access mechanisms provided by Katonic.
1.5 Customer Materials: means materials, systems, and other resources that Customer provides to Katonic professional connection with professional services.
1.6 Documentation: means the technical documentation for the Software that is included in
the version of the Software accessed by Customer, including all additions and modifications made by
Katonic from time to time in accordance with this Agreement.
1.7 High Risk Activities: means activities where use or failure of the Software could lead to death, personal injury, financial losses, or environmental damage, including life support systems, emergency services, nuclear facilities, autonomous vehicles, or air traffic control.
1.8 Laws: means all relevant local, state, federal and international laws, regulations and
conventions, including those related to data privacy
and data transfer, international communications and export of technical or personal data.
1.9 Local Law Addendum: means the Local Law Addendum.
1.10 Order: means each order, order form or statement of work for the purchase of software
services from Katonic.
1.11 Scope of Use: means Customer’s authorized scope of use for the Software specified in
the applicable Order, which may include any user,
copy, instance or other restrictions.
1.12 Software: means the object code form of Katonic’s proprietary installed software
product, as identified in the relevant Order including all additions and modifications and releases made
from time to time in accordance with this Agreement.
1.13 Subscription Term: means the term for Customer’s use of the Software as identified in
1.14 Support: means the support services for the Software as described in the Support
1.15 Support Policy: means the Katonic Support Policy
1.16 Professional Services: means any training, enablement, consulting, support or other
services provided by Katonic related to the Software, as
identified in an Order.
1.17 Third-Party Platform: means any platform, add-on, service or product not provided by
Katonic that Customer elects to integrate or enable
for use with the Software
1.18 User: means any employee (permanent and temporary) or contractor of Customer or its
Affiliates that Customer
allows to use the Software on its behalf.
Section 2 - Ordering and License Grant
2.1 This Agreement governs each Order unless the parties expressly agree otherwise in writing. Each
Order will form a separate contract between the parties and will be deemed to be subject to the terms
set out in this Agreement except to the extent that the Order provides for different or varied terms.
2.2 Subject to this Agreement, Katonic grants Customer a non-transferable, non-sublicensable,
non-exclusive license during the Subscription Term to install, copy and use the Software (including
through APIs) on systems under Customer’s control only for its internal business purposes (including
deployment of Customer created models or other data products) in accordance with the Documentation and
the Scope of Use.
Section 4 - Restrictions on Use
Customer shall not, and shall not permit any third party to, except as permitted under this Agreement:
(a) use the Software other than in accordance with the Documentation.
(b) attempt to copy (other than for backup purposes), modify, create derivative works from, or distribute
any part of the Software.
(c) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human perceivable form any part of the Software except to the extent the law in Customer’s or an Affiliate’s jurisdiction permits this where necessary for the purposes of integrating the operation of the Software with the operation of other software or systems used by Customer or that Affiliate. Before carrying out such action, Customer shall give Katonic no less than 30 days’ written notice and the exception will not apply if Katonic is prepared to carry out such action at a reasonable commercial fee or provides the information necessary to achieve such integration within a reasonable period.
(d) access any part of the Software in order to build a competing product or service;
(e) use the Software to provide services to third parties;
(f) license, lease, transfer, assign, disclose, or otherwise commercially exploit the Software; or
(g) modify any proprietary rights notices that appear in the Software
Section 5 - Evaluation Use
5.1 Customer may receive access to the Software (or Software features) as a no-fee, trial, alpha, beta, or early access offering (“Evaluation Software”). Unless otherwise agreed, use of the Evaluation Software is only for Customer’s internal evaluation for 30 days from the date Customer is first granted access to the Evaluation Software.
5.2 Any Models generated by Customer using the Evaluation Software may only be used to evaluate the features and functions of the Evaluation Software and not used to make decisions on any other Customer business issues. Upon conclusion of the evaluation, Customer shall cease use of and destroy all such Models unless Customer purchases the Software within three months of access to the Evaluation Software ends.
5.3 Katonic shall be entitled to cancel Customer’s access to the Evaluation Software or modify the Evaluation Software at any time. In such scenario, no warranty, availability, Maintenance, or Support obligations of Katonic will apply to Evaluation Software
5.4 Customer agrees to provide feedback related to the Evaluation Software as reasonably requested by Katonic. Customer grants to Katonic, without charge, the fully paid-up, perpetual right to exploit such feedback for development of its business, products, and services so long as such exploitation does not identify Customer as the source of the feedback. The Evaluation Software is subject to the terms of Section 4 (Restrictions on Use) to the same extent as the Software.
5.5 Other than for a breach of Section 4 (Restrictions on Use), and subject to Section 18.4 (Liability which cannot be excluded), each party’s liability in connection with Customer’s use of any Evaluation Software will not exceed US $500.
Section 6 - Support
During the Subscription Term, Katonic will provide Support in accordance with the Support Policy
Section 7 - Professional Services
7.1 Katonic shall provide Professional Services as described in the Order. Where Katonic provides any other services at Customer’s request in connection with an Order, such services shall be deemed to be Professional Services and chargeable at the rate given in the Order for such services or, where no rate is given, at the rate agreed to by the parties in advance.
7.2 Professional Services will be performed Monday through Friday, excluding national holidays, during business working hours, in the location where the Professional Services are to be performed by Katonic.
7.3 Katonic grants to Customer, during the Subscription Term, a non-exclusive, non- transferable, non-sublicensable license to use any training and other informational materials provided during or created in the performance of the Professional Services to the extent necessary to enable Customer’s use of the Software in accordance with the terms of this Agreement.
7.4 Customer shall provide reasonable access, cooperation, and information as necessary to permit Katonic to perform the Professional Services.
7.5 While on Customer premises, Katonic personnel shall comply with any rules or policies of Customer that are made available to them in writing.
7.6 Customer will be charged at cost for travel and expenses incurred in providing the Professional Services (if any) unless stated otherwise in the Order.
Section 8 - Export
Each party will comply with applicable laws and regulations governing the export, re- export, and transfer of the Software and will obtain all required local and extraterritorial authorizations, permits, or licenses.
Section 9 - Term and Termination
9.1 This Agreement starts on the Effective Date and continues until expiration or termination of all Subscription Terms.
9.2 Either party may terminate this Agreement (including all Orders) if the other party (a) fails to cure a material breach of this Agreement (including a failure to pay fees) within 30 days after notice, (b) ceases operation without a successor or (c) seeks protection under a bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if such a proceeding is instituted against that party and not dismissed within 60 days.
9.3 Upon expiration or termination of this Agreement or an Order, Customer’s license to the Software and access to Support and Technical Services will cease, and Customer must immediately cease using the Software and delete (or, upon request, return) all copies of the Software. At the disclosing party’s request upon expiration or termination of this Agreement, the receiving party will delete all of the disclosing party’s Confidential Information. Confidential Information may be retained in the receiving party’s standard backups after deletion but will remain subject to this Agreement’s confidentiality restrictions.
9.4 Except as otherwise set out in this Agreement, this Agreement and any applicable Orders are non-cancellable and all fees are non-refundable.
9.5 These Sections survive expiration or termination of this Agreement: Section 12 (Ownership), Section 16 (Confidentiality), Section 18 (Limitation of Liability), Section 21 (Entire Agreement), and Section 24 (General) will survive alongside any other clauses that are intended to survive termination or expiration or expiration of this Agreement in order to achieve the fundamental purposes of this Agreement.
Section 10 - High Risk Activities
Customer agrees that it will not use the Software for, and Katonic has no liability with respect to, High Risk Activities.
Section 11 - Fees, Payment, and Taxes
11.1 The fees for Maintenance and Support are included in the fees for the Software.
11.2 All fees are exclusive of any sales, excise, export, import, value added, or similar tax (“Tax”). Katonic shall show any applicable Tax as a separate item on its invoice to Customer.
11.3 Customer will be invoiced in advance for the fees for the Software, Professional Services, and any applicable Tax annually in advance unless otherwise set out in the Order. Customer shall pay invoices within 30 days of the invoice date unless disputed in good faith.
11.4 All amounts due under this Agreement shall be paid by Customer in full without any set-off, counterclaim, deduction, or withholding.
11.5 Following no less than 14 days written notice, Katonic may suspend Customer’s access to Support, Maintenance, and the Software if any payments are not received within 60 days of the date of invoice that has not been disputed in good faith on objectively reasonable grounds.
Section 12 - Ownership
Neither party grants the other any rights or licenses not expressly set out in this Agreement. Except for Katonic’s use rights in this Agreement, between the parties, Customer retains all intellectual property and other rights in any Customer Materials provided to Katonic. Except for Customer’s license rights in this Agreement, Katonic and its licensors retain all intellectual property and other rights in the Software, any Professional Services deliverables, and related Katonic technology, templates, formats, and dashboards, including any modifications or improvements to these items made by Katonic. If Customer provides Katonic with feedback or suggestions regarding the Software or other Katonic offerings, Katonic may use the feedback or suggestions without restriction or obligation.
Section 13 - Open Source
The Software may incorporate third-party open-source software (“OSS”), as listed at the website. To the extent required by the OSS license, that license will apply to the OSS on a stand-alone basis instead of this Agreement.
Section 14 - Modifications
14.1 Modifications to Agreement. Katonic may modify this Agreement from time to time with notice to Customer. Modifications take effect at the earlier of Customer’s next Subscription Term or Order. Once the modified Agreement takes effect Customer’s continued use of the Software constitutes its acceptance of the modifications. Katonic may require Customer to click to accept the modified Agreement.
14.1 Modifications to Support Policy. The Support Policy is not subject to Section 14.1 (Modifications to Agreement). With notice to the Customer, Katonic may modify the Support Policy to reflect new features or changing practices, but the modifications will not materially decrease Katonic’s overall obligations during a Subscription Term.
Section 15 - Local Law Addendum
Customer agrees to the terms set forth in the Local Law Addendum applicable to Customer’s Account Country, if any. In the event of a conflict with the terms of the main body of this Agreement, the terms of the Local Law Addendum will control.
Section 16 - Confidentiality
16.1 “Confidential Information” means all information of a party or its Affiliates (“Discloser”) disclosed to the other party (“Recipient”) that is identified as confidential at the time of disclosure or should be reasonably known by the Recipient to be confidential due to the nature of the information and the circumstances surrounding the disclosure.
16.2 The Recipient shall:
(a) not use the Discloser’s Confidential Information for any purpose outside of this Agreement.
(b) not disclose such Confidential Information to any person or entity other than on a need- to-know basis.
(c) ensure that anyone Confidential Information is disclosed to is bound by written obligations of confidentiality in place with the Recipient; and
(d) use reasonable measures to protect the confidentiality of such Confidential Information.
16.3 If the Recipient is required by applicable law, court order, or the rules of a stock exchange on which it is listed to make any disclosure of such Confidential Information, it will first, if legally permitted, give written notice to the Discloser. To the extent within its control, the Recipient shall permit the Discloser to intervene in any relevant proceedings to protect its interests in its Confidential Information.
16.4 Confidential Information will not include information that the Recipient can show:
(a) was rightfully in its possession or known to it prior to receipt without any restriction on its disclosure.
(b) is or becomes publicly known through no breach of this Agreement.
(c) is independently developed without the use of the other party’s Confidential Information; or
(d) is rightfully obtained from a third party without breach of any confidentiality obligation.
16.5 The Recipient acknowledges that unauthorized disclosure of the Discloser’s Confidential Information could cause substantial harm to the Discloser for which damages would not be an adequate remedy.
Section 17 - Warranties and Disclaimers
17.1 Katonic warrants that:
(a) during the first 90 days following the date of the applicable Order, the Software will, in all material respects, conform to the functionality described in the then-current Documentation for the applicable software version;
(b) the Software is not subject to any “copyleft” or other obligation or condition that requires the disclosure, licensing, or distribution of the Software or any Customer software used in conjunction with the Software(including any source code);
(c) it shall comply with all laws applicable to the operation of its business; and
(d) the professional Services will be provided in accordance with good industry standards by appropriately qualified personnel using reasonable skill and care.
17.2 In the event of a breach of Section 17.1(a), Customer’s sole and exclusive remedy is that Katonic shall use commercially reasonable efforts to correct any reproducible non- conformity. If such efforts are unsuccessful within 30 calendar days of written notice from Customer, Customer may terminate the license to the affected Software. Katonic shall then promptly provide a pro-rata refund of the license fees that have been paid in advance for the remainder of the Subscription Term for the applicable Software calculated from the date of termination.
17.3 The warranty in Section 17.1(a) will not apply to the extent any non-conformance is caused by:
(a) Customer using the Software with an application or in an environment other than as described in the Documentation; or
(b) modifications made to the Software that were not made by Katonic, Katonic’s authorized representatives, or with the express written authorization of Katonic.
17.4 Customer acknowledges that the accuracy of the Models created by the Software is dependent on the Customer Data used to build the Models. Katonic gives no warranty as to the accuracy, correctness, or completeness in live operation of any Model used by the Software or predictions made by the Software
17.5 Katonic only gives the express warranties in this Agreement. All other conditions, warranties, or other terms which might have effect or be implied or incorporated into this Agreement whether by statute, common law, or otherwise are excluded to the fullest extent permitted by law permitted period.
Section 18 - Limitation of Liability
18.1 Subject to Section 18.4, except for any loss or damage to Customer caused directly by the Solution’s failure to operate in accordance with the Documentation, Katonic shall have no liability related to Customer’s reliance on predictions made by the Solution.
18.2 Subject to Section 18.4, in no event will either party be liable for any: (a) loss of revenues or profits; (b) loss of or damage to business reputation; (c) loss of use or business interruption; (d) loss of wasted management time or staff time; (e) loss of data; or (f) indirect, incidental, special, punitive or consequential damages, whether in an action in contract or tort (including negligence), even if the other party has been advised of the possibility of such damages.
18.3 Subject to Sections 18.1, 18.2, and 18.4, each party’s liability for any damages payable to the other party or, in the case of Katonic, liability for damages payable to Customer or in respect of any Affiliate, (whether for breach of contract, misrepresentations, negligence, strict liability, other torts or otherwise) under or in connection with this Agreement and all Orders shall be limited as follows. Each party’s liability for damages in any complete calendar year following execution of this Agreement will not exceed 100% of the total fees paid (plus fees payable) to Katonic during the immediately preceding calendar year. In respect of any damages becoming payable in respect of the first such calendar year, the sum shall be the total amount payable in the first year of the Subscription Term
18.4 Nothing in this Agreement will limit or exclude either party’s liability for:
(a) death or personal injury caused by its negligence;
(b) gross negligence or willful misconduct;
(c) its obligations under Section 19 (Indemnity);
(d) in the case of Customer, for: (i) breach of Sections 4 (Restrictions on Use) and (ii) payment of fees;
(e) any matter which by law may not be excluded or limited.
Section 19 - Indemnification
19.1 Subject to Section 19.3, Katonic agrees to defend, at its cost, Customer against (or, at Katonic’s option, settle), any third party claim to the extent such claim asserts that the Software infringes or misappropriates any patent, copyright, trademark or trade secret of that third party and Katonic shall pay all costs and damages finally awarded against Customer by a court of competent jurisdiction as a result of any such claim.
19.2 If the use of the Software is, or in Katonic’s sole opinion is likely to become, subject to such a claim, Katonic shall be entitled to:
(a) replace the applicable Software with functionally equivalent non-infringing technology;
(b) obtain a license for Customer’s continued use of the applicable Software; or
(c) terminate this Agreement or the license to the infringing Software and provide a pro- rata refund of the license fees that have been paid in advance for the remainder of the Subscription Term for the applicable Software, calculated from the date of termination.
19.3 The indemnity in Section 19.1 will not apply:
(a) if the Software is modified by anyone other than Katonic
(b) if the infringement is caused by Customer combining the Software with non-Katonic applications, code, or products;
(c) in the event of continued use of an infringing version of the Software after Katonic has provided a non-infringing version; or
(d) to the extent that breach of this Agreement caused the infringement claim.
19.4 The foregoing will be Customer’s sole remedy for any claim of infringement of third- party intellectual property rights.
19.5 An indemnifying party’s obligations under this Section 19 only apply if:
(a) the other party notifies the indemnifying party of the indemnification claim in writing as soon as possible once it becomes aware of the claim;
(b) the indemnified party makes no admission of liability or fault;
(c) the indemnifying party is given sole control over the defense of the claim and settlement of it; and
(d) the indemnified party provides all reasonable assistance to the indemnifying party.
Section 20 - Resellers
20.1 If Customer makes any purchases through an authorized partner of Katonic (“Partner”):
(a) Instead of paying Katonic, Customer will pay the applicable amounts to the Partner, as agreed between Customer and the Partner; and
(b) Customer order details (e.g., the Software Customer is entitled to use, how Customer’s entitlements are measured, the Subscription Term, etc.) will be as stated in the order placed between Partner and Customer and communicated to Katonic.
20.2 Partners are not authorized to modify this Agreement or make any promises or commitments on Katonic’s behalf, and Katonic is not bound by any obligations to Customer other than as set out in this Agreement or in writing by an authorized Katonic representative.
20.3 The amount paid or payable by the Partner to Katonic for Customer’s use of the applicable Software under this Agreement will be deemed the amount paid or payable under this Agreement for purposes of calculating the liability cap in Section 18.3 (Limitation of Liability) and any pro-rata refunds.
Section 21 - Entire Agreement
21.1 This Agreement and any documents referred to in it are the complete and exclusive statement of the parties’ agreement and supersede all proposals or prior arrangements, understandings, or agreements between the parties relating to the subject matter of this Agreement.
21.2 Each party acknowledges that, in entering into this Agreement, it has not relied on, and will have no right or remedy in respect of, any statement, representation, assurance, understanding, or warranty (whether in writing or not) of any person (whether party to this Agreement or not) other than as expressly set out in this Agreement.
Section 22 - Notices
22.1 All notices required to be given under this Agreement shall be in writing and delivered by hand, email, first class prepaid mail, or recorded delivery mail.
22.2 Notices for Katonic shall be sent to email@example.com
22.3 Notices for Customer shall be sent to the bill to address on the Order or address at the top of this Agreement.
Section 23 - Katonic Contracting Entity, Governing Law
The Katonic Contracting Entity, the governing law in any action related to this Agreement and which courts have jurisdiction over any such action, depend on Customer’s Account Country. This Agreement is governed by the applicable governing law indicated below without regard to conflicts of laws provisions and without regard to the United Nations Convention on the International Sale of Goods. Both parties submit to the personal jurisdiction of the applicable courts indicated below
||Katonic Contracting Entity
|Australia and New Zealand
||Katonic Pty Ltd
||New South Wales
||State courts of New South
Wales and the Federal
Court of Australia
||Katonic India Private Limited
|Rest of the World
||Katonic Pty Ltd
Section 24 - General
24.1 Unless it expressly states otherwise, this Agreement does not give rise to any rights for a third party to enforce any term of this Agreement.
24.2 If this Agreement conflicts with any of the terms of any Order, then the terms of the Order will control solely with respect to the Software and Professional Services covered by the Order. Any purchase orders issued by Customer shall be deemed to be for Customer’s convenience only and, notwithstanding acceptance of purchase orders by Katonic, shall in no way change, override, or supplement this Agreement.
24.3 Any waiver or modification of the provisions of this Agreement will only be effective if in writing and signed by both parties.
24.4 If the whole or any part of a provision of this Agreement is held invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions will be unaffected. If any invalid, unenforceable, or illegal provision would be valid, enforceable, or legal if part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
24.5 No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law will constitute a waiver of that or any other right or remedy, nor will it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy will prevent or restrict the further exercise of that or any other right or remedy.
24.6 Katonic is an independent contractor and not an employee of Customer. At no time shall either party make any commitments or incur any charges or expenses for or in the name of the other party, or be considered the agent, partner, joint venture, employer, or employee of the other party.
24.7 Neither party may assign this Agreement without the prior written approval of the other, which approval will not be unreasonably withheld or delayed, provided that either party may assign any of its rights and/or obligations herein to any of its Affiliates; or to any entity that acquires all or substantially all of its assets, provided always that the assignee is in a position to discharge the obligations of the assignor.
24.8 Neither the Uniform Commercial Code (UCC), the United Nations Convention on Contracts for the International Sale of Goods nor the Uniform Computer Information Transactions Act (UCITA) will apply to this Agreement.
24.10 Customer agrees that Katonic may refer to Customer by its trade name and logo, and may briefly describe Customer’s business, in Katonic’s marketing materials and website.
24.11 Katonic shall maintain, throughout the term of the Agreement and with a reputable insurance provider, insurance coverage that is commercially reasonable relative to its obligations under the Agreement. Upon written request, Katonic shall provide to Customer with evidence of such insurance.