These Terms of Service are effective October 21, 2021 for all customers with a new or renewal
Subscription Term beginning on or after that date. For customers with an existing Subscription Term
entered into prior to the Effective Date, these updated terms are effective for you 30 days from the
Effective Date (except as provided in these Terms of Service).
These updated Terms of Service have not changed your ability to use our Service. You may continue to
access your Account and use the Service as you always have.
If you have a separate agreement with Katonic for use of the Service, then the updates to the Terms of
Service will not apply to you.
These Terms of Service (“Agreement”) govern your (“Customer,” “you,” or “your”) paid use of the Service
and by clicking on the “I Agree,” “Accept Terms,” “Start Now” or similar button on the Service
registration page and executing an Order as further described, you represent that (1) you have read,
understand, and agree to be bound by this Agreement, (2) you are of legal age to form a binding contract
with Katonic Pty Ltd. (“Katonic,” “we,” “our,” or “us,” and collectively with Customer, “Parties”), and
(3) you have the authority to enter into this Agreement personally or on behalf of the company or other
organization you have named as the user, and to bind that entity to this Agreement. In the event you are
agreeing to this Agreement on behalf of a company or organization, “Customer,” “you,” and “your” will
refer to the entity you are representing.
We may update this Agreement from time to time in accordance with Section 11.5 (Updates). The most
current version of this Agreement will be posted on www.katonic.ai (the “Site”).
Section 1 - The Service
1.1 Use of the Service: katonic grants to Customer during the Subscription Term the right to
use and access the Service for its internal business purposes only in accordance with the Documentation,
Order, and this Agreement.
1.2 Customer Users and Affiliates: The employees and contractors of Customer or Affiliates
may access and use the Service on Customer’s or Affiliate’s behalf (each, a “User”). Each User may be
required to provide a username, email address, password, or other personal information to create and
manage an Account (“Login Credentials”) and must keep its Account keys and Login Credentials confidential
and not share them with anyone. Katonic uses and collects Login Credentials for account management and
support in accordance with the Katonic General Data Privacy Notice (currently located at https://katonic.ai/privacy-policy.html ). The customer
is responsible for its Users’ compliance with this Agreement and the actions taken through the Account. If
the Customer becomes aware of any compromise of a User’s credentials, the Customer will let Katonic know
as soon as possible.
1.3 Service Level Availability: Katonic will use commercially reasonable efforts to make the
Service available in line with industry standards.
1.4 Support: Katonic will provide support to the Customer in accordance with the Support
Plan commitment set out in the Documentation.
1.5 Restrictions: Customer will not (and will not permit anyone else to) do any of the
following: (a) use the Service to develop a similar or competing product or service; (b) obtain or attempt
to obtain the Service by any means or device with intent to avoid paying the fees that would otherwise be
payable for such access or use; (c) reverse engineer, decompile, disassemble, or seek to access the source
code, algorithms, or non-public APIs to the Service or any related features, except to the extent
expressly permitted by law (and then only with prior notice to Katonic); (d) modify or create derivative
works of the Service or copy any element of or related features with the Service (other than authorized
copies of the Software); (e) publish benchmarks or performance information about the Service; (f) fail to
perform or observe the obligations set out in Section 2.5 (Obligations); (g) perform any security
integrity review, penetration test, load test, denial of service simulation, or vulnerability scan on
Katonic; (h) provide access to or sublicense the Service to a third party other than a Third-Party
Service; or (i) use the Service on behalf of, or to provide any product or service to, third parties. To
ensure compliance with this Section 1.5 (Restrictions), Katonic may monitor or review the use of the
Service and investigate suspected violations of this Agreement.
Section 2 - Customer Data
2.1 Customer Data Configurations.: The Service and related features are designed to
provide Customer with control over its configuration and use, including in the types of Customer Data it
processes. Katonic refers to the data, information, or content that Customer and Users send from the
Software, the Customer Properties, or Third-Party Services to, or queries through, an Account as
“Customer Data.” The Customer Data stored in an Account will be hosted in the data region that Customer
selects during the setup of the Account as further described in the Documentation.
2.2 Use of Customer Data to Provide the Service: Katonic needs a limited license to
Customer Data in order to provide the Service. For example, depending on the Service subscribed to, the
Service and related features may create visualization aides, such as dashboards, charts, and graphs,
which requires, among other rights, a right to create derivative works. Customer grants Katonic a
non-exclusive, worldwide right to use, copy, store, transmit, display, modify, and create derivative
works of the Customer Data, to the extent necessary to manage, improve, and provide the Service and
related services, as well as to provide support to Customer.
2.3 Data Security Commitments: Katonic uses industry-standard administrative, technical,
physical, and organizational measures designed to protect Customer Data for all of our customers across
Katonic’s multi-tenant architecture. Katonic will provide Customer a copy of our most current security
attestation report (ISO27001 or equivalent report) upon written request.
2.4 Export of Customer Data; Retention: At any time during the Subscription Term, Customer
may export Customer Data stored in its Account in supported formats. Katonic retains Customer Data in
accordance with the data retention policy applicable to the Service.
(a) Katonic provides Customer configuration and data control options in the Services, such as controls
over sending data to and from the Service, setting up integrations for sending data to Customer’s
desired endpoints, such as Customer’s Third Party Services, and querying Customer Data. Customer,
through its use and configuration of the Service, is instructing Katonic to process Customer Data. For
example, the type, quantity, and frequency of Customer Data received by or queried through Katonic is
pursuant to Customer’s decisions and instructions. Customer is responsible for its configuration
choices, and any risks resulting from Customer’s disablement of any Katonic default privacy or security
settings or features (e.g. disabling encryption of data in transit). Customer shall implement any
Software updates immediately after Katonic makes such available for general release. Customer is
responsible for Customer Data, including its content and accuracy. Customer agrees that its use of the
Service and related features will comply with the Documentation.
(b) Customer represents and warrants to Katonic that it has all necessary rights, consents, and
permissions to grant Katonic the rights in Section 2.2 (Use of Customer Data to Provide the Service) and
to use and submit Customer Data to the Service, all without violating or infringing any applicable laws,
third-party rights (including intellectual property, publicity, or privacy rights), or any terms or
policies governing Customer Data.
(c) Customer must not send any “Prohibited Data” to the Service, which means any: (1) special
categories of data enumerated in European Union Regulation 2016/679, Article 9(1) or any successor
legislation; (2) patient, medical, or other protected health information regulated by the Health
Insurance Portability and Accountability Act (as amended and supplemented) (“HIPAA”); (3) credit, debit,
or other payment card data or financial account information, including bank account numbers; (4)
credentials granting access to an online account (e.g. username plus password); (5) social security
numbers, driver’s license numbers, or other government identification numbers; (6) other information
subject to regulation or protection under specific laws such as the Children’s Online Privacy Protection
Act or Gramm-Leach-Bliley Act (or related rules or regulations); (7) precise geolocation data; or (8)
any data similar to the above protected under foreign or domestic laws. Customer also must not use the
Service or related features in connection with any activities where its use or failure could lead to
death, personal injury, or environmental damage, such as in life support systems, emergency services,
nuclear facilities, autonomous vehicles, or air traffic control (collectively, “High Risk Activities”).
Customer acknowledges that the Service and related features are not intended to meet any legal
obligations for these uses, including HIPAA requirements, and that Katonic is not a Business
Associate or a subcontractor as defined under HIPAA. Therefore, notwithstanding anything else in this
Agreement, Katonic has no liability for Prohibited Data processed, or High Risk Activity-related use, in
connection with the Service.
2.6 Suspension: Katonic may suspend access to, or limit, the Service and related services
(and the relevant fees for the Service will continue to apply during such period) if: (a) you breach
this Agreement or an Order, including non-payment of any fees when due; or (b) there is a risk of harm
to other Katonic customers or the security, availability, or integrity of the Service due to actions
taken within an Account or resulting from a Third-Party Service. Where practicable, Katonic will use
reasonable efforts to provide prior notice of any suspension. Once the issue requiring suspension is
resolved, without limiting any Katonic remedies, Katonic will restore access to the Service in
accordance with this Agreement.
2.7 Systems Operations Data: In order to provide its customers with the benefits of a
multi-tenant cloud offering, Katonic may collect and process utilization statistics and other technical
data (e.g. page load data) regarding use, configuration, and deployment of the Service to operate,
manage, improve, instrument, benchmark, and support the Service; provided, Katonic will not disclose any
information derived from such data if doing so would make it possible for a third party to identify
Customer or any individual natural person.
2.8 Third-Party Services: Customer may choose to use the Service together with Third Party
Services. Customer acknowledges that Third-Party Services do not form part of the Service and that
Customer’s use of Third-Party Services is subject to Customer’s agreement with the relevant provider and
not this Agreement. For clarity, because Third-Party Services are not controlled by Katonic and do not
form part of the Service, Katonic bears no responsibility or liability for Third-Party Services,
including their security, availability, functionality, or inoperability, or any effect they may have on
your Customer Properties or how the Third-Party Services or their providers use Customer Data. If
Customer enables a Third-Party Service with the Service, Katonic may access and exchange Customer Data
with the Third-Party Service on Customer’s behalf and instruction. Use of the Service with a Third-Party
Service does not expand Customer rights or our obligations under this Agreement.
Section 3 - Commercial Terms
3.1 Fees: Fees and invoicing may be described in each Order and/or the Usage Plan. Unless
the Order or Usage Plan provides otherwise, all fees are payable in U.S. dollars and are due upon
invoice issuance. If you exceed usage limits in an Order, you will pay overage fees in accordance with
the Order, the Usage Plan, or this Agreement. Katonic refers to the Service pricing, invoicing related
information, and product-specific terms (e.g. concurrent user account sessions) contained within the
Documentation as the “Usage Plan.” Late payments are subject to a service charge of 1% per month or the
maximum amount allowed by law, whichever is less. All fees and expenses are non-cancellable and
non-refundable except as set out in this Agreement.
3.2 Taxes: The fees do not include any sales or other applicable taxes, levies, duties, or
similar assessments assessable by any jurisdiction. Each party is responsible for their own tax
obligations. If Katonic has the legal obligation to pay or collect taxes for which Customer is
responsible under this Section 3.2 (Taxes), the appropriate amount will be invoiced to and paid by
Customer, unless Katonic is provided with a valid tax exemption certificate authorized by the
appropriate taxing authority.
3.3 Disputes: Unless the Usage Plan provides otherwise, Customer will notify us of any
good-faith invoice dispute within 15 days of the invoice date and reasonably cooperate with Katonic to
resolve the dispute. If the Parties cannot resolve the dispute prior to the payment due date as
described in Section 3.1 (Fees), either party may seek any available remedies. Undisputed amounts must
be paid in full in accordance with this Section 3 (Commercial Terms).
3.4 Subscription Term: Each Subscription Term will automatically renew for successive
periods equal in duration to the previous Subscription Term, unless either party gives the other party
notice of non-renewal at least 30 days before the then current Subscription Term ends. Per-unit rates
for renewals will be the same as in the prior Subscription Term for the same Service, unless Katonic
notifies you in advance of an increase. These increases will not exceed 10% over the rates for the same
Service in the prior Subscription Term, unless prior Order pricing was designated as discount,
promotional, or one-time.
3.5 Affiliate Orders: An Affiliate may enter into their own Order(s) with Katonic. This
creates a separate agreement between the Affiliate and Katonic incorporating this Agreement with the
Affiliate treated as “Customer”. Neither Customer nor any Affiliate has any rights under each other’s
agreement with Katonic, and breach or termination of any such agreement is not breach or termination
under any other.
Section 4 - Disclaimers
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICE, SUPPORT, AND ALL RELATED KTONIC SERVICES ARE
PROVIDED “AS IS”. KATONIC AND ITS SUPPLIERS MAKE NO OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY,
OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR
NONINFRINGEMENT. WITHOUT LIMITING OUR EXPRESS OBLIGATIONS IN SECTIONS 1.3 (SERVICE LEVEL AVAILABILITY) AND
1.4 (SUPPORT), KATONIC DOES NOT WARRANT THAT USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT
WE WILL REVIEW CUSTOMER DATA FOR ACCURACY, OR THAT WE WILL MAINTAIN CUSTOMER DATA WITHOUT LOSS. KATONIC IS
NOT LIABLE FOR ISSUES WITH THE SERVICE DUE TO CUSTOMER NOT INSTALLING THE LATEST VERSION OF THE SOFTWARE
OR DELAYS, FAILURES, OR PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR
OTHER SYSTEMS OUTSIDE OUR CONTROL. KATONIC MAKES NO WARRANTIES CONCERNING RESULTS TO BE ACHIEVED FROM THE
SERVICE. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT ANY STATUTORILY REQUIRED WARRANTIES WILL BE LIMITED
TO THE SHORTEST LEGALLY PERMITTED PERIOD.
Section 5 - Confidentiality
5.1 Confidential Information: For the purposes of this Agreement, the Parties define
“Confidential Information” to mean any of the information disclosed under this Agreement that is
designated by the disclosing party as proprietary or confidential, or that should be reasonably understood
to be proprietary or confidential due to its nature and the circumstances of its disclosure. Katonic’s
Confidential Information includes any technical, pricing, or performance information about the Service or
related services. Customer’s Confidential Information includes your Customer Data.
5.2 Obligations: As receiving party, each party will (a) hold in confidence and not disclose
Confidential Information to third parties except as permitted in this Agreement, and (b) only use
Confidential Information to fulfill its obligations and exercise its rights in this Agreement. The
receiving party may disclose Confidential Information to its employees, agents, contractors,
subcontractors, and other representatives having a legitimate need to know such Confidential Information,
provided the receiving party remains responsible for their compliance with this Section 5
(Confidentiality) and such parties are bound to confidentiality obligations no less protective than this
Section 5 (Confidentiality).
5.3 Exclusions: These confidentiality obligations do not apply to information that the
receiving party can document: (a) is or becomes public knowledge through no fault of the receiving party;
(b) it rightfully knew or possessed prior to receipt under this Agreement; (c) it rightfully received from
a third party without breach of confidentiality obligations; or (d) it independently developed without
using the disclosing party’s Confidential Information. The receiving party may disclose Confidential
Information if required by law, subpoena, or court order, provided (if permitted by law) it notifies the
disclosing party in advance and cooperates in any effort to obtain confidential treatment.
5.4 Remedies: Unauthorized use or disclosure of Confidential Information may cause
substantial harm for which damages alone may be an insufficient remedy. Each party may seek appropriate
equitable relief, in addition to other available remedies, for breach or threatened breach of this Section
Section 6 - 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, as between the Parties, Customer retains all intellectual property
and other rights in Customer Data. Except for Customer’s use rights in this Agreement, Katonic and its
licensors retain all intellectual property and other rights in the Service, the Documentation, and related
Katonic technology, services, templates, formats, and dashboards, including any modifications or
improvements to these items made by Katonic. If you provide Katonic with feedback or suggestions regarding
the Service or other Katonic offerings, we may use the feedback or suggestions without restriction.
Section 7 - Limitations of Liability
7.1 Liability Cap: EACH PARTY'S ENTIRE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT
WILL NOT EXCEED IN AGGREGATE THE AMOUNTS PAID OR PAYABLE BY CUSTOMER TO KATONIC FOR THE SERVICE MADE
AVAILABLE TO CUSTOMER DURING THE PRIOR 12 MONTHS IMMEDIATELY PRECEDING THE INCIDENT CREATING LIABILITY
UNDER THIS AGREEMENT, EXCEPT AS OTHERWISE SET OUT IN THIS SECTION 7 (LIMITATIONS OF LIABILITY).
7.2 Consequential Damages Waiver: EXCEPT FOR EXCLUDED CLAIMS, NEITHER PARTY WILL HAVE ANY
LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS,
FAILURE OF SECURITY MEASURES, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL,
RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THEIR POSSIBILITY IN ADVANCE.
7.3 Excluded Claims: NO LIMITATION OF LIABILITY WILL APPLY TO EXCLUDED CLAIMS. “EXCLUDED
CLAIMS” MEANS: (1) CLAIMS FOR WHICH LIABILITY CANNOT BE LIMITED UNDER APPLICABLE LAW; (2) BREACH OF
SECTION 1.5 (RESTRICTIONS) OR PAYMENT OBLIGATIONS IN SECTION 3 (COMMERCIAL TERMS) OR CUSTOMER’S BREACH OF
SECTION 5 (CONFIDENTIALITY); OR (3) AMOUNTS PAYABLE TO THIRD PARTIES UNDER THE INDEMNIFYING PARTY’S
OBLIGATIONS IN SECTION 8.2 (INDEMNIFICATION BY CUSTOMER).
7.4 Nature of Claims and Failure of Essential Purpose: THE WAIVERS AND LIMITATIONS IN THIS
SECTION 7 (LIMITATIONS OF LIABILITY) APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT
(INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE AND WILL SURVIVE AND APPLY EVEN IF ANY LIMITED
REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.
Section 8 - Indemnification
8.1 Indemnification by Katonic: Katonic will defend Customer from and against any valid
third-party claim to the extent alleging that the Service, when used by Customer as authorized, infringes
a valid third-party’s U.S. patent, copyright, or trademark, and will hold harmless and indemnify Customer
against any damages or costs finally-awarded against Customer (including reasonable attorneys’ fees) or
agreed in settlement by Katonic resulting from the claim.
8.2 Indemnification by Customer: Customer will defend Katonic from and against any
third-party claim to the extent related to or arising from Customer Materials, Customer Data or Customer’s
breach or alleged breach of (a) this Agreement, or (b) any applicable law or regulation, and Customer will
hold harmless and indemnify Katonic against any damages or costs awarded against Katonic (including
reasonable attorneys’ fees) or agreed in settlement by Customer resulting from the claim.
8.3 Procedures: The indemnifying party’s obligations in this Section 8 (Indemnification) are
subject to receiving: (a) prompt written notice of the claim; (b) the exclusive right to control and
direct the investigation, defense, and settlement of the claim; and (c) all reasonably necessary
cooperation of the indemnified party, at the indemnifying party’s expense for reasonable out-of-pocket
costs. The indemnifying party may not settle any claim without the indemnified party’s prior written
consent if settlement would require the indemnified party to admit fault or take or refrain from taking
any action (other than relating to use of the Service, when Katonic is the indemnifying party). The
indemnified party may participate in a claim with its own counsel at its own expense.
8.4 Mitigation and Exceptions: In response to an actual or potential infringement claim, if
required by settlement or injunction or as Katonic determines necessary to avoid material liability,
Katonic may at its option: (a) procure rights for Customer continued use of the Service; (b) replace or
modify the alleged infringing portion of the Service to avoid infringement with substantially similar
functionality; or (c) terminate the applicable Service in the affected Order and refund any pre-paid,
unused fees for the terminated portion of the Subscription Term. Katonic’s obligations in this Section 8
(Indemnification) do not apply: (1) to infringement resulting from Customer’s modification of the Service
or use of the Service in combination with items not provided by Katonic (including Third-Party Services);
(2) to infringement resulting from Software other than the most recent release; (3) to unauthorized use of
the Service or if Customer is in breach of an Order, Usage Plan, or this Agreement; (4) if the total
aggregate fees paid to Katonic for the Service is less than US$100,000 in the twelve (12) month period
immediately preceding the claim; (5) to infringement resulting from compliance by Katonic with Customer
designs, plans, specifications or instructions; (6) if Customer settles or makes any admissions about a
claim without Katonic’s prior written consent; or (7) to any claim arising from or related to Customer’s
indemnification obligations. This Section 8 (Indemnification) sets out Customer’s sole and exclusive
remedy and Katonic’s entire liability regarding infringement of third-party intellectual property rights.
Section 9 - Term and Termination
9.1 Term: This Agreement is effective for Customer’s applicable Subscription Term unless
terminated as described in this Agreement. Any unpaid use of the Service shall be governed as described in
Section 11.4 (Entire Agreement).
9.2 Termination: 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 written 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. If
Katonic terminates this Agreement for Customer’s material breach under this Section 9.2 (Termination),
Customer will promptly pay Katonic any outstanding fees or expenses due and any fees for the terminated
portion of the Subscription Term. If Customer terminates this Agreement for Katonic’s material breach
under this Section 9.2 (Termination), then, at Customer’s request, Katonic will refund to Customer any
pre-paid, unused fees for the terminated portion of the Subscription Term. In no event will any
termination relieve Customer of the obligation to pay any expenses and fees payable to Katonic for the
period prior to the effective date of termination. Except where an exclusive remedy is provided,
exercising a remedy under this Agreement does not limit other remedies a party may have. For clarity,
Katonic may modify or discontinue the Service, including any portions of the Service, as we update our
offerings and add more features.
9.3 Effect of Termination: Upon expiration or termination of this Agreement or an Order,
Customer’s access to the applicable Service will immediately cease and Customer must stop sending Customer
Data to the Service. Termination of an Order will not be deemed a termination of this Agreement or any
other Order; however, termination of this Agreement will immediately terminate all outstanding Orders. 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 (including Customer Data in an Account,
which Katonic will delete after termination or expiration). Confidential Information may be retained in
the receiving party’s standard backups after deletion but will remain subject to this Agreement’s
9.4 Survival: These Sections survive expiration or termination of this Agreement: 1.5
(Restrictions), 2.5 (Obligations), 2.7 (Systems Operations Data), 3.1 (Fees), 3.2 (Taxes), 4
(Disclaimers), 5 (Confidentiality), 6 (Ownership), 7 (Limitations of Liability), 8 (Indemnification), 9
(Term and Termination), 11.2 (Governing Law, Jurisdiction, and Venue), 11.3 (Notices), 11.4 (Entire
Agreement), 11.5 (Updates), 11.6 (Waivers and Severability), and 11.13 (Channel Partner Service
Section 10 - Technical Services
10.1 Technical Services: From time to time, Customer may choose to engage Katonic for
training, enablement, or other technical services in respect of the Service (“Technical Services”). Any
purchased Technical Services are as described in the relevant Order. For clarity, the purchase of
Technical Services is not required in order for Customer to use and access the Service and Customer agrees
that Technical Services do not form part of the Service.
10.2 Delivery; Use: Customer will give Katonic timely access to Customer materials, systems,
and other resources (“Customer Materials”) reasonably needed to provide the Technical Services, and if
Customer fails to do so, Katonic’s obligation to provide Technical Services will be excused until access
is provided. Katonic may make use of service partners to provide the Technical Services. Customer
represents and warrants to Katonic that it has all necessary rights, consents, and permissions to provide
the Customer Materials to Katonic. Customer, as between the Parties, retains all ownership rights in the
Customer Materials and grants to Katonic a limited right to use and access the Customer Materials only to
provide the Technical Services to Customer. Katonic will treat the Customer Materials as Confidential
Information. Subject to payment of the applicable fees and a current subscription to the Service, Customer
is granted a non-exclusive and non-transferable license to use the product of any Technical Services for
its own internal business purposes only and consistent with the licenses and restrictions set forth in
10.3 Technical Services Warranty: Remedy. Katonic warrants to Customer that Katonic will
perform any Technical Services in a professional and workmanlike manner. If Katonic breaches this warranty
and Customer makes a reasonably detailed warranty claim within 30 days of discovering the issue, such that
Katonic can reproduce or verify such issue, then Katonic will use commercially reasonable efforts to
correct the non-conformity. If Katonic cannot correct the non-conforming Technical Services, either party
may terminate the applicable Technical Services from the affected Order, in which case Katonic will refund
to Customer any such pre-paid, unused fees for the terminated portion of the Subscription Term. These
procedures are Customer’s sole and exclusive remedy and Katonic’s entire liability for breach of this
Section 10.3 (Technical Services Warranty; Remedy). THE ENTIRE LIABILITY OF KATONIC UNDER OR IN CONNECTION
WITH THE TECHNICAL SERVICES WILL AT ALL TIMES BE LIMITED TO THE GREATER OF FEES PAID FOR SUCH TECHNICAL
SERVICES IN THE APPLICABLE TECHNICAL SERVICES ORDER OR FIFTY DOLLARS.
Section 11 - General Terms
11.1 Assignment: Customer may not assign this Agreement (or any Order) without the prior
written consent of Katonic, except that Customer may assign this Agreement (and applicable Order) in
connection with a merger, reorganization, acquisition, or other transfer of all or substantially all its
assets or voting securities provided that Customer is in good standing with Katonic and that such
assignment by Customer does not expand its scope of use for the Service. Any non-permitted assignment is
void. This Agreement will bind and inure to the benefit of Customer’s permitted successors and assigns.
11.2 Governing Law, Jurisdiction, and Venue: This Agreement is governed by the laws of the
New South Wales and the Australia without regard to conflicts of laws provisions or the United Nations
Convention on the International Sale of Goods. The jurisdiction and venue for actions related to this
Agreement will be the state and Australian federal courts located in Sydney, Australia, and both Parties
submit to the personal jurisdiction of those courts.
11.3 Notices: Notices to you will be deemed given upon: (a) personal delivery; (b) 3 days
after sending via certified, registered mail, or deposit with a globally recognized courier; or (c) email
to your account administrator or the contact on the Order. Katonic may also provide notices to you
electronically, including but not limited to through the Site or Service, which shall be deemed given to
you upon dispatch including if the last email address you provided to us is invalid, or for any reason
that any such notice is not capable of delivery to you. Customer may update its address with notice to
Katonicin accordance with this Section 11.3 (Notices). You are responsible for providing us with your most
current email address and updating it as applicable. You may give us notice at: Katonic Pty Ltd , 7
Hillside Place, West Pennant Hills , NSW 2125 , Australia Attn: General Counsel. Such notice shall be
deemed given when received by Katonic by letter delivered by nationally recognized overnight delivery
service or first class postage prepaid mail at the foregoing address.
11.4 Entire Agreement: This Agreement (and all Orders), the Documentation, and any addenda
or policies otherwise made available on the Site by Katonic is the Parties’ entire agreement regarding its
subject matter and supersedes any prior or contemporaneous agreements regarding its subject matter. In the
event of any conflict or inconsistency between the Order and this Agreement, the Order will prevail.
Customer’s purchases are not contingent on delivery of any future functionality or features. Any unpaid
use of the Service, including after any expiration or termination of a Subscription Term, is governed by
the terms published at: << Insert>> katonic may release additional features, modules, or pre-release,
preview, and beta products available to Customer subject to Service Specific Terms . “Service Specific
Terms” means the terms that apply to additional Services currently found at
newrelic.com/termsandconditions/terms. In this Agreement, headings are for convenience only and
“including” and similar terms are to be construed without limitation. The terms in any Customer purchase
order, business form, online terms (i.e. click-wrap or browse-wrap), or invoicing portal will not amend
or modify this Agreement and are expressly rejected; any of this documentation is for Customer’s own
administrative purposes only and is not binding on Katonic.
11.5 Updates: Katonic may modify this Agreement from time to time. If we determine in our
sole discretion that an update is material, we will provide notice of such material change to you through
the Service, Site, our blogs or forums, and/or in accordance with Section 11.3 (Notices). Any changes to
this Agreement posted on the Site will be effective immediately if Customer assents to such changes or for
any new or renewal Subscription Term, and thirty (30) days thereafter for all other customers with an
existing Subscription Term, except changes required by law or as necessary for use of any new products or
features, which will immediately become effective to the extent necessary to comply with such law or as
required to use such new products or features. If Customer objects to the updated Agreement within such
period in accordance with Section 11.3 (Notices), as Customer’s sole and exclusive remedy and without
penalty, Customer may choose to continue its use of the Service under the prior version of this Agreement
until Customer’s next Subscription Term renewal and such updated Agreement will automatically apply as of
the renewal Subscription Term unless you elect not to renew pursuant to Section 3.4 (Subscription Term).
In any event, continued use of the Service during the renewal Subscription Term will constitute Customer
acceptance of the version of the Agreement in effect at the time the renewal Subscription Term begins.
11.6 Waivers and Severability: Waivers must be signed by the waiving party’s authorized
representative and cannot be implied. If any provision of this Agreement is held invalid, illegal, or
unenforceable, it will be limited to the minimum extent necessary so the rest of this Agreement remains in
11.7 Force Majeure: Katonic is not liable for any delay or failure to perform any obligation
under this Agreement or any Order due to events beyond its reasonable control, such as a strike, blockade,
war, act of terrorism, riot, Internet or utility failures, refusal of government license, or natural
11.8 Service Support Providers: Katonic uses third-party hosting and other service providers
(e.g. data center providers or support ticketing systems) in our supply of the Service and related
features and support.
11.9 Independent Contractors: The Parties are independent contractors, not agents, partners,
or joint venturers.
11.10 Open Source Software: To the extent Katonic separately makes available other open
source software (“OSS”) for download (e.g. community tools), such code is governed by the terms of the
applicable OSS license. To the extent required, the license for any OSS included in the Software,
identified in the Documentation, will apply to the OSS instead of this Agreement.
11.11 Channel Partner Service Subscriptions: This Section applies to any Customer access of
the Service obtained through an authorized Katonic channel partner (“Channel Partner”).
(a) Commercial Terms: Instead of paying Katonic, the Customer will pay applicable amounts to
the Channel Partner as agreed between the Customer and the Channel Partner. Customer’s order details
(e.g., the scope of use and fees) will be as stated in the Order placed by Channel Partner with Katonic on
Customer’s behalf. Customer’s Order will renew with Channel Partner in accordance with Section 3.4
(Subscription Term) unless Channel Partner notifies Katonic that it is opting-out of auto-renewal on
Customer’s behalf as described in this Agreement or in the manner specified in the agreement between
Channel Partner and Katonic. Channel Partner is responsible for the accuracy of such Order. Katonic may
suspend or terminate the Customer’s rights to use the Service if it does not receive the corresponding
payment from the Channel Partner. If Customer is entitled to a refund under this Agreement, Katonic will
refund any applicable fees to the Channel Partner and the Channel Partner will be solely responsible for
refunding the appropriate amounts to Customer, unless otherwise specified.
(b) Relationship with Katonic: This Agreement is directly between Katonic and Customer and
governs all use of the Service by Customer. Channel 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 forth in this Agreement. Katonic is not a party to (or responsible under) any
separate agreement between Customer and Channel Partner. The amount paid or payable by the Channel Partner
to Katonic for Customer’s use of the applicable Service under this Agreement will be deemed the amount
paid or payable by Customer to Katonic under this Agreement for purposes of Section 7 (Limitations of
Liability). Katonic is not responsible for any acts, omissions, products or services provided by Channel
GLOSSARY OF TERMS USED
“Account” means the online account or subaccounts that Katonic provides for Customers to manage
its use of the Service.
“Affiliate” means an entity where the Customer owns greater than 50% of the voting securities,
provided that such an entity will be considered an Affiliate for only such time as such equity interest
“Customer Properties” includes Customer’s websites, infrastructure, networks, mobile applications,
or other systems, as well as Customer accounts on Third-Party Services.
“Documentation” means the Katonic technical guides and documentation made available from the
dedicated ‘Documentation’ page of the Katonic website, including the Usage Plan and Acceptable Use
“Order” means the purchasing order for access to the Service or related services that: (1) is
either executed by the Parties and references this Agreement or entered into by you via self-service, or
(2) is entered into by you and a Channel Partner.
“Service” means the generally-available Katonic proprietary cloud service set out in the Katonic
Order, the Software, and any updates, corrections, bug fixes, modifications, improvements, new features,
and functionality (made generally available to Katonic’s customer base) thereto.
“Software” means the distributed software, APIs, scripts, or other code proprietary to Katonic
provided with the Service.
“Subscription Term” means the then-current period of use set out in the Order.
“Third-Party Services” means any third party platform, add-on, service, or product not provided by
Katonic and that a User integrates or enables for use with the Service, including third-party
applications and plug-ins.
BY USING SERVICE OR OTHER SERVICES PROVIDED BY US, YOU ACKNOWLEDGE THAT YOU HAVE READ THESE TERMS OF
SERVICE AND AGREE TO BE BOUND BY THEM.