TestOps Agreement

KATALON TESTOPS SERVICE AGREEMENT

You should carefully read the following terms and conditions before using the Katalon TestOps™ service (“Service”) of Katalon, Inc. (“Katalon”). By using the Service, you acknowledge your acceptance of the terms and conditions of this Service 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”] 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 proceed no further and do not use the Service.

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

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.

OVERVIEW. You must register for an account with Katalon in order to access and use the Service. Please register for your Katalon account at https://www.katalon.com/  if you have not done so.

The Service is a cloud-based automated testing solution that works with the Katalon Studio/Katalon Studio Enterprise software (“Katalon Studio”) and provides a centralized online space for a team/organization to:

• Store, plan and execute the tests created by Katalon Studio;
• Provide a test execution infrastructure using Katalon Studio installed on local servers;
• Consolidate execution reports with logs, screenshot, and videos from execution sessions; and
• Provide insights, dashboards, and alerts from the test results.

The Service also may be integrated with certain continuous integration (CI) and application lifecycle management (ALM) systems.

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

KATALON STUDIO. When you download Katalon Studio you will activate and register your subscriptions on your account. This Agreement does not cover your use of Katalon Studio. Use of Katalon Studio is subject to a separate license agreement which you enter into at the time of your download and installation.

USE OF SERVICE. Subject to the terms and conditions of this Agreement, Katalon grants you a nonexclusive, nontransferable, nonsublicensable license to use the Service solely to assist with (a) your internal test execution and management operations for your Projects and (b) test execution operations for Projects for your Clients as part of the services you provide to them. You may also use the Documentation solely in connection with your use of the Service. You may make a reasonable number of copies of the Documentation in connection with your use. You acknowledge that Katalon may use third party service providers for some or all of the operations that make available the Service.

USER MANAGEMENT. The User Admin will manage your User access. The User Admin can create an O, under your account.,  Team members can be invited  into this Org based on the parameters established by the User Admin for the Org. Invited team members will receive an email to create a User account which will be associated with this Org; upon creation of that account this invitee will become a User. Your and your Users’ protection of their IDs and passwords is an integral part of maintaining the privacy and integrity of data in the Service. You shall keep confidential and not disclose, nor permit any User to disclose, any ID or password to third parties.  You shall notify Katalon immediately of any unauthorized use of any ID or password or any other known or suspected breach of security with respect to your use of the Service. You may permit Users who are Your Contractors to use the Service on your behalf solely as necessary to provide you services, subject to the following: (x) any such use is subject to the terms and conditions of this Agreement, and (y) each of Your Contractors must be subject to obligations of confidentiality at least as protective of the Services, Documentation and Katalon as those in this Agreement. You are responsible for ensuring that all Users comply with the terms of this Agreement and for all activities of Users and others that occur through your account. Contact information for your User Admin and other contact information you provide may be stored and used by Katalon in accordance with its Privacy Policy available at https://katalon.com/privacy-policy/, and you consent to these uses.

OTHER LIMITATIONS. You may not access the Service if you are or become Katalon’s direct competitor, except with Katalon’s prior written consent. With respect to your use of the Service for Clients as permitted above, you may not provide access to the Client or include the Service as part of a product, service or other offering you provide to the Client. You may not use the Service for purposes of monitoring the Service’s performance or functionality or for any other benchmarking or competitive purposes. You acknowledge and agree that the Service and all Documentation 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.

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 Service and its underlying technology, 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) sublicense, copy, modify, or publicly display the Service or any of the underlying technology or the Documentation , (b) except for the limited use for Clients described above and Your Contractors as permitted above, use on behalf of any third party, or permit any third party to use, the Service, (c) decompile or reverse engineer the software used to provide the Service, (d) remove any proprietary rights notices on the Service, or (e) attempt to gain unauthorized access to the Service or circumvent any security measures within the Service.

SUPPORT. Support for the Service includes available online support Documentation, including bug reports, tutorials and discussion forums at  https://forum.katalon.com (subject to the terms of use and privacy policy available on the Web site).

FEES. The pricing for subscriptions to the Service is set forth at https://www.katalon.com/pricing/. Katalon may change the pricing at any time, and the updated pricing will apply to any purchase made after the change. When you subscribe to the Service, you will indicate and pay for the subscription number and type (annual or monthly). You may add to your subscription count by making additional purchases through your Katalon account . If you are purchasing subscriptions through a reseller, then the fees and subscription number/type will be set forth in the order agreed to by Katalon and your reseller.

PAYMENT. 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 Service. Katalon may invoice you for amounts due if credit card payment is not effective for any reason. Where you are to be invoiced for fees, Katalon will invoice you, and you shall pay any invoice within 30 days of the date of invoice. If a PO number is required in order for an invoice to be paid, then you must provide such PO number to Katalon by emailing the PO number to billing@katalon.com. 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. If you are purchasing subscriptions through a reseller, then the reseller is responsible for payment of the fees for those subscriptions; however, if the reseller fails to pay Katalon for any reason, then Katalon may invoice you directly for the applicable fees, and the payment terms above will apply. The fees are exclusive of all taxes, and you shall pay all taxes, duties or charges of any kind imposed by any taxing authority for the amounts due under this Agreement, excluding taxes based solely on Katalon’s income. All fees are nonrefundable.

DATA.

Test Data. “Test Data” means the records and other data you create and store in the Service about the testing projects you conduct using Katalon Studio, including the testing project name and date, test execution results (log, image, video) and reports, and execution environment information. You grant Katalon the worldwide, nonexclusive right to copy, display, modify, store, process and otherwise use Test Data, and permit Katalon’s service providers to do so, during and after the term of this Agreement in order to do the following: (a) provide the Service and make Test Data available to you, (b) improve the Service and Katalon’s other products and services, and (c) create Aggregate Performance Data (defined below). You own and retain all rights in the Test Data. Test Data is stored in an unencrypted fashion on servers operated by Katalon’s service providers. Katalon and its service providers use commercially reasonable security precautions with respect to such storage.  You represent and warrant (a) that you have the right to use and permit the Service to use Test Data and (b) none of Test Data will contain personal information protected by law, including without limitation any protected health information (PHI) or nonpublic personal information.

Aggregate Performance Data. “Aggregate Performance Data” means anonymized data resulting from the aggregation and analysis of Test Data with similar data from other Katalon customers, third party sources or both. While Aggregate Performance Data is based in part on Test Data, the Test Data itself is not disclosed as part of the Aggregate Performance Data. Katalon owns and retains all rights in the Aggregate Performance Data.

Usage Data. As a part of the Service, Katalon and its service providers may collect, process, store, modify, aggregate and otherwise use statistics and other data regarding your use of the Service, such as the number and types of test cases and test runs uploaded (“Usage Data”). Usage Data does not include your Test Data or the information you provide as part of registration. Katalon owns and retains all rights in the Usage Data.

General Use by Katalon. Katalon may transfer Test Data, Usage Data and Aggregate Performance Data to a third party in connection with (a) a permitted assignment of this Agreement or (b) a delegation of hosting, transmission or other duties, as long as the third party provider agrees to abide by confidentiality obligations similar to the ones contained in this Agreement. In addition, Katalon may disclose Test Data, Usage Data and Aggregate Performance Data if required by law or to any government body upon its audit or other inspection of the records or facilities of Katalon or its providers.

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

SUSPENSION OF ACCESS. Katalon may suspend your access to the Service for any violation of this Agreement or if Katalon reasonably believes that your activity is harming the Service or the rights or property of any person. You acknowledge that you will not have access to Test Data during any suspension. Katalon may exercise the rights in this Section prior to exercising the termination provisions of this Agreement and without prior written notice to you. Unless the Agreement is terminated, Katalon will remove the suspension upon resolution of the cause of the suspension.

SUBSCRIPTION TERM AND TERMINATION.

As part of your registration for the Service, you may elect to purchase a yearly subscription to the Service; if you do not elect to purchase a yearly subscription, then the Service will be provided on a monthly basis. The “Subscription Term” will continue for the initial period you elected as part of your registration. The Subscription Term will automatically renew for additional yearly periods if you purchased a yearly subscription, or otherwise on a month-to-month basis, unless cancelled by either party with at least 15 days’ advance notice to the other. You may cancel the Service by using the cancellation option in your profile page in the Service. Cancellation will be effective as of the date Katalon receives your cancellation. Katalon will notify you of cancellation via the email address in your account profile, and cancellation will be effective at the end of the then-current Subscription Term.

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. You will still have access to the Service until the last day of your paid subscription term. All renewals are subject to the applicable Service continuing to be offered and will be charged at the then-current rates. If purchasing through a reseller, then the renewal will occur through your reseller’s renewal process.

In addition, Katalon may terminate this Agreement and the Service upon your breach of any of the terms contained in this Agreement.

EFFECT OF TERMINATION.  Upon termination for any reason, all test execution sessions in progress end immediately and you shall immediately. Katalon will archive your Test Data after termination, and for a period of 30 days after termination, you may reactivate your account by renewing your subscription to the Service to access, view and remove Test Data from the Service. After this 30-day period, Katalon may delete any Test Data in its discretion, but it is not obligated to do so.

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.

Katalon does not warrant that the service will be uninterrupted, error-free or completely secure.  Katalon does not and cannot control the flow of data to or from Katalon, your network, and other portions of the Internet. Such flow of data depends in large part on services provided or controlled by third parties, and at times, actions or inactions of such third parties can impair or disrupt your connections to the Internet (or portions thereof).  Katalon cannot guarantee that such events will not occur. Accordingly, Katalon disclaims any and all liability resulting from or related to such events.

You are responsible for all decisions based on your use of the Service, including without limitation any losses or liabilities arising from how you use the results of the Service. 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 Service, 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 Service.

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 the greater of (a) the fees you have paid Katalon for the Service in the 12 months preceding the claim or (b) $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 Service 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.

BETA USAGE. From time to time, Katalon may make available, and you may subscribe to, beta versions of the Service (“Beta Versions”). Use of any Beta Version is “as is” with no warranty, indemnification or Katalon makes no commitment that any Beta Version will become generally available. Any Beta Version Additional terms and conditions may apply at the time you subscribe to the Beta Version.

IP INDEMNIFICATION. Katalon shall defend any claim brought by a third party against you that the Service infringes any U.S. patent, copyright, trademark or trade secret of any third party (“Claim”) and shall pay any award of damages and costs made against you in a final judgment by a court of competent jurisdiction, or any amount in settlement, arising out of a Claim. Katalon’s obligations in this Section are conditioned upon (1) you providing Katalon prompt written notice of the Claim; (2) you providing reasonable assistance and cooperation to enable Katalon to defend the Claim; and (3) Katalon having sole control over the defense of the Claim and any negotiations for its settlement. If the use of the Service becomes, or in Katalon’s opinion is likely to become, the subject of a Claim, then Katalon at Katalon’s option and expense may either (a) procure the right for you to continue to use the Service as permitted under this Agreement, or (b) replace or modify the Service so that it becomes noninfringing. If unable to do (a) or (b) after exercising commercially reasonable efforts, Katalon may terminate this Agreement upon written notice to you. At such time, Katalon shall return to you the subscription fees which have been prepaid for the period of time remaining in your Subscription Term for which you will no longer receive the Service. Katalon will have no liability for any claims caused by or contributed to by (i) any modification or alteration of the Service performed other than by Katalon, (ii) use of the Service other than as specified in its Documentation and under this Agreement, (iii) any hardware, software, data or other materials not provided by Katalon, (iv) the combination or use of the Service with non-Katalon software, hardware, data, materials or services, or (v) any other acts by you in violation of this Agreement. This Section states your exclusive remedy against Katalon and the complete liability of Katalon with respect to any claim of infringement made against 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 Test Data, (c) your violations of law or the rights of any third party.

IDENTIFICATION AS CUSTOMER. Katalon may identify your Organization as a customer in Katalon’s promotional materials including on its Web site. Katalon will stop this use at your request if you send an email with that request to info@katalon.com. Katalon may contact and notify you at the email address provided for the User Admin. You are required to keep the contact information for your Org Owner current.

COMMUNICATIONS. General questions and communications regarding the Service 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.

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.

(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 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.

(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 Service 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 Service in violation of any U.S. export law or regulation.

U.S. GOVERNMENT END-USE PROVISIONS. The following applies to all acquisitions of the Service 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 Service and documentation and services utilizing the Service 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 Service and its associated services and Documentation with only those rights and subject to the restrictions set forth in this Agreement. Notwithstanding the foregoing, the Service 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 here under is null and void.

GLOSSARY. Below are some defined terms used in this Agreement. Other terms may be defined in context.

“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.

“Admin User” means a User (either you or another employee of your Organization) who is your contact for purposes of controlling your Katalon account.

“Client” means a person or entity who receives your testing services and the resulting output.

“Documentation” means the documentation that accompanies the Service or is made available at https://docs.katalon.com.

“Katalon Store” means the Katalon’s online store located at https://store.katalon.com/.

“Machine” means a single computer operated by you (or your Organization) on which you may run the Software.

“Org” means your organization or subdivision of it under which you conduct one or more Projects and which is designated by your Admin User in your Katalon account.

“Project” means a testing project for your organization or one of your Clients.

“User” means a named individual identified by an email address who is either your employee or Your Contractor and whom the Admin User has invited to participate in a Project through your Katalon account.

“Your Contractors” means your independent contractors and supplemental personnel who provide services to you.