LICENSE AGREEMENT FOR KATALON SOFTWARE

You should carefully read the following terms and conditions before downloading and installing the Katalon Studio™ software product (“Software”) of KMS Technology, Inc. (“KMS”). By clicking the [“Accept and download”] button and proceeding to download and use the Software, you acknowledge your acceptance of the terms and conditions of this License Agreement (“Agreement”). Clicking the [“Accept and download”] 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 download”] 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 download install the Software.

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

This is a license and not a sale. The Software 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 Software. This Agreement comprises the entire agreement between you and KMS, and supersedes any other agreement, terms or promises, oral or written, with respect to the subject matter of this Agreement.

LICENSE. Subject to the terms and conditions of this Agreement, KMS grant you a nonexclusive, nontransferable, nonsublicensable license to use the Software solely on your computers for your internal test execution and management operations. Use of the Software is limited to use in object-code form only. You may also use the documentation that accompanies the Software or is made available at http://docs.katalon.com (the “Documentation”) solely in connection with your use of the Software. You may make a reasonable number of copies of the Software and Documentation in connection with your use. This license only applies to the version of the Software you have downloaded and not any future versions.

LIMITATIONS. You may not access the Software if you are or become KMS’s direct competitor, except with KMS’s prior written consent. In addition, you may not use the Software for purposes of monitoring the Software’s performance or functionality or for any other benchmarking or competitive purposes. You acknowledge and agree that the Software and all Documentation and the information in them represent KMS’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, KMS reserves 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, 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, (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 or circumvent any security measures 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 (1) you shall first request the technical information from KMS, (2) this technical information may be used only for the purposes of ensuring interoperability and compatibility, and (2) the technical information will be considered KMS Information and treated as such according to the terms set forth in this Agreement.

SUPPORT. As part of your registration and download, you will enter the email address and other contact information for a named individual (either you or another employee of your organization) who is your contact for purposes of use of the Software (“Registered User”). KMS shall provide limited email support to your Registered User at no additional charge to answer questions and provide advice regarding use of the Software. This email support is only for the most recent version of the Software available, although KMS may elect in its discretion to provide you with email support for the prior version. In addition, KMS makes available additional online support Documentation, communities and discussion forums at http://forum.katalon.com and other resources at its online support portal at http://support.katalon.com accessible by the Registered User via login (“Support Portal”). Use of these resources is subject to the terms of use and privacy policy available on the Web site.  Support does not entitle you to updates or new versions of the Software; in order to receive a new version of the Software, you must download the new version and enter into the new license agreement governing use of the same.

SUGGESTIONS. You grant KMS a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Software any suggestions, enhancement requests, recommendations or other feedback provided by you, including your Registered User, relating to the Software (“Feedback”). KMS may use and incorporate any Feedback without any compensation or acknowledgement to you.

TERMINATION. Your license to the Software and Documentation terminates immediately upon the earlier to occur of the following: (a) when you download a new version of the Software replacing this version, (b) when you stop using the Software, 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 Software 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 Software.

DISCLAIMERS. The Software is provided free of charge and “as-is.” CONSEQUENTLY, KMS 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 KMS and its officers, directors, agents, and employees, shall have no liability for errors or omissions in the output of the Software, 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 Software.

LIMITATION OF LIABILITY. In no event will KMS 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 KMS 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 Software or this Agreement, even if KMS 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 Software and Documentation can be made via the means provided at the Support Portal. Any notices to KMS regarding this Agreement should be made to legal@kms-technology.com. KMS may contact and notify you at the email address provided for the Registered User. You are required to keep the contact information for your Registered User current.

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.

DISPUTE RESOLUTION.

  1. 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.
  2. 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. Judgment on the arbitration award may be entered in any court having jurisdiction.
  3. Notwithstanding the foregoing, KMS 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 Software 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 Software in violation of any U.S. export law or regulation.

U.S. GOVERNMENT END USE PROVISIONS. The following applies to all acquisitions of the Software 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 Software and Documentation and services utilizing the Software 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 Software and its associated services and Documentation with only those rights and subject to the restrictions set forth in this Agreement. Notwithstanding the foregoing, the Software 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 KMS. Any attempt by you to sublicense, assign or transfer any rights, duties, or obligations here under is null and void.