PURCHASER/SUBSCRIBER TERMS AND CONDITIONS
1.1 “Documentation” means user guides, instructions, manuals or videos provided by or on behalf of KATANA in connection with the provision and use of the System.
1.2 “Embedded Software” means all software or firmware installed, embedded, or provided with the Products.
1.3 “End User” has the meaning assigned in Section 6.2.
1.4 “Products” means the KATANA personal safety device.
1.5 “KATANA” or “we” or “us” means KATANA Safety Inc.
1.6 “Order” means a written request to purchase Products and subscribe to the Services pursuant to the terms set forth on the Order Page of this Agreement.
1.7 “Services” means the network communication, remote monitoring and optional notifications services provided by KATANA under this Agreement and the proprietary KATANA software used in connection with the Products and/or provided on a hosted or software-as-a-service basis , as described in an applicable Order and/or the Site.
1.8 “Site” means KATANA’s website located at www.katanasafety.com and any subsequent version thereof.
1.9 “System” means the Products and the Services.
2. SYSTEM AND SERVICES
2.1 Provision of Services. During the term of this Agreement, KATANA will provide the Services to the End Users authorized by Customer or to Customer as the sole End User on a subscription basis for use with the Products in accordance with this Agreement. In order to use or access certain features of the Products and Services, each End User may be required to provide, at End User’s own cost, a personal computer, smartphone (or other mobile communication device), tablet, operating software, an Internet browser, and/ or access to the Internet.
2.2 Modifications of Service. The Services may include one or more of the following: (a) the enabling of wireless transmission of data between Products placed, on the one hand, in the End User’s premises or Products physically carried by an End User (or otherwise attached to a personal computer, smartphone, tablet or other device carried by an End User), and on the other hand, a network operations center; (b) providing remote access to data collected by the Products via Customer’s KATANA account; (c) providing email, SMS and other notifications to Customer regarding Product activity; (d) providing periodic email or other electronic communication updates to End Users; and (e) providing automated updates to Products firmware. KATANA reserves the right to modify, add or eliminate Services from time to time without prior notice; provided, that in the event KATANA eliminates one or more Services, then (i) KATANA shall provide a refund to Customer of all prepaid fees relating to such eliminated Services or, if no fee is attributed to the particular eliminated Services, an equitable amount of overall prepaid fees representing the value of such eliminated Services, and (ii) Customer may terminate this Agreement with respect to such eliminated Services.
2.3 Force Majeure. KATANA will not be liable for any inconvenience, loss, liability, or damage resulting from any interruption of the System directly or indirectly caused by, or proximately resulting from, any circumstances beyond KATANA’s reasonable control, including, but not limited to, causes attributable to Customer or Customer’s property (or attributable to any End User or End User’s property); failure of any third party telecommunications network; strike; labor dispute; riot or insurrection; war; explosion; malicious mischief; fire, flood, lightning, earthquake, wind, ice, extreme weather conditions or other acts of God; failure or reduction of power; or any court order, law, act or order of government restricting or prohibiting the operation or delivery of the System.
3.1 INSTALLATION. CUSTOMER OR, AS APPLICABLE, AN END USER IS RESPONSIBLE FOR INSTALLING, PROGRAMMING, CONFIGURING, AND LOADING THE PRODUCTS AND ACTIVATING THE SERVICES IN ACCORDANCE WITH THE INSTRUCTIONS KATANA PROVIDES. IT IS CUSTOMER’S AND EACH END USER’S RESPONSIBILITY TO OBTAIN AND KEEP IN EFFECT ALL CONSENTS, AUTHORIZATIONS, PERMITS OR LICENSES THAT MAY BE REQUIRED FOR THE INSTALLATION AND OPERATION OF THE SERVICES IN EITHER CUSTOMER’S OR THE END USER’S PREMISES OR WITH CUSTOMER’S OR END USER’S PERSONAL COMPUTER, SMARTPHONE, TABLET OR OTHER DEVICE.
3.2 Cost of Operation. Customer and/or each End User is responsible for all costs of operating equipment and services that may be necessary to use the System.
3.3 Service Limitations. Certain services and features of the System may have additional requirements and/or restrictions. THE SERVICES ARE INTENDED SOLELY FOR USE WITHIN THE UNITED STATES OF AMERICA. END USER UNDERSTANDS AND AGREES THAT THE SITE AND THE SERVICES ARE NOT INTENDED TO BE A REPLACEMENT FOR 911 IN THE EVENT OF AN EMERGENCY. END USER AND MEMBERS OF END USER’S DESIGNATED CIRCLE OF SAFETY (THAT IS, A GROUP OF END USER SELECTED CONTACTS TO BE NOTIFIED AN EMERGENCY) HAVE THE ABILITY TO DIAL 911 DIRECTLY. IN THE EVENT OF AN EMERGENCY, ALWAYS CALL 911 IMMEDIATELY. THE SERVICES AND THE SITE ARE NOT DESIGNED, NOR DO THEY PROVIDE ANY DETERRENT TO ANY EXTERNAL ACTIVITY THAT AN END USER MAY ENCOUNTER OR BE EXPOSED TO, WHETHER CRIMINAL OR OTHERWISE. KATANA IS NOT LIABLE FOR THE ACTIONS OR INACTIONS OF ANY END USER, 911 CENTER, EMERGENCY RESPONDER, ASSISTANCE PROVIDER OR ANY OTHER THIRD PARTY. YOU UNDERSTAND THAT OUR ABILITY TO NOTIFY EMERGENCY RESPONDERS (INCLUDING ANY KATANA RESPONSE CENTER SERVICES) IS DEPENDENT ON LOCATION SERVICES BEING ACTIVATED AND RUNNING ON END USER’S SMART PHONE OR OTHER MOBILE COMMUNICATION DEVICE (AT ALL TIMES, AND NOT JUST WHEN THE KATANA SOFTWARE APPLICATION IS OPEN), WITH SUFFICIENT PERMISSIONS GRANTED TO THE KATANA SOFTWARE APPLICATION AND PRODUCTS. END USER UNDERSTANDS AND AGREES THAT ANY CALLS AND/OR ELECTRONIC COMMUNICATIONS TO ANY KATANA RESPONSE CENTER MAY BE RECORDED. END USER UNDERSTANDS AND AGREES THAT END USER’S IMMEDIATE ORAL COMMUNICATIONS, INCLUDING IN-PERSON CONVERSATIONS, UTTERANCES AND OTHER EXCHANGES AND/OR BETWEEN END USER AND WHOMEVER OR WHATEVER IS IN END USER’S PRESENCE, MAY BE RECORDED AND COLLECTED VIA INITIATION OF THE SILENT ALERT EMERGENCY FEATURE OF THE SITE AND SERVICES WHICH INITIATES A DIGITAL AUDIO RECORDING FUNCTION. THIS RECORDED INFORMATION WILL BE STORED LOCALLY ON END USER’S DEVICE AND WILL NOT BE STORED BY OR TRANSMITTED TO THE SITE OR SERVICES. END USER UNDERSTANDS THAT CERTAIN FEATURES OF THE SERVICES AND PRODUCTS ARE DEPENDENT ON THE OPERATION OF THE KATANA SOFTWARE APPLICATION, AND THAT IF THE KATANA SOFTWARE APPLICATION IS NOT ACTIVELY RUNNING ON END USER’S SMART PHONE OR OTHER MOBILE COMMUNICATION DEVICE, THESE FEATURES MAY NOT OPERATE CORRECTLY.
3.5 Restrictions. Customer will not and will cause its End Users not to, directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the System or any software, Documentation or data related to the System; (ii) modify, translate, or create derivative works based on the Services; (iii) use the Services for timesharing or service bureau purposes or otherwise for the benefit of a third party (except as explicitly permitted in this Agreement for End Users); or (iv) remove any proprietary notices or labels.
4. ACTIVATION, PAYMENT AND RENEWAL
4.1 Product Purchase and Subscription to Services. Customer hereby agrees to purchase the Products described in the Order and to subscribe to the Services as described in the Order, and subject to Customer’s timely payment of amounts due hereunder, KATANA agrees to sell to Customer the Products described in the Order.
4.2 Installation. The Services will not begin, and KATANA will have no obligation to process information received from the System until KATANA has received and processed (a) an executed copy of this Agreement, (b) a completed Order and (c) Customer’s initial payment or deposit, if required.
4.3 Subscription Fees. Customer agrees to pay the subscription fees for the initial subscription period as set forth in Customer’s Order. If Customer’s subscription is renewed, Customer agrees to pay the then-applicable subscription fees for the renewal terms (subject to Section 4.5, below).
4.4 Automatic Payment. Customer authorizes and agrees that all amounts due to KATANA under this Agreement, including any deposit, as applicable and all subscription fees, are to be paid by ACH draft or automatic charge to a credit card pursuant to the information Customer provided with Customer’s Order. If Customer’s chosen payment method is not honored, KATANA may: (a) demand payment by alternate method and Customer agrees to pay the amount due; (b) suspend the Services and/or (b) elect to terminate this Agreement by giving Customer notice. Such termination does not relieve Customer of Customer’s obligation to pay for Services provided prior to such termination.
4.5 Automatic Renewal. If Customer authorizes and agrees to automatic renewal of a subscription after the initial subscription period as set forth on the Order then until Customer provides at least thirty (30) days’ prior notice of Customer’s intent not to renew for a subsequent subscription period, KATANA will automatically withdraw the applicable amount via ACH or automatically charge a credit card pursuant to information provided by Customer. Unless otherwise agreed to by KATANA, any termination of a subsequent subscription period by Customer, provided Customer has given proper prior notice, will be effective on the next full billing cycle following receipt of such notice by KATANA (that is, if a subsequent subscription period is on a monthly basis, beginning the 1st of each month (for example, April 1), and notice of non-renewal is received in the preceding month (for example, March 15), then termination is effective after the completion of the upcoming month (for example, termination would be effective May 1).
4.6 Taxes; Third Party Costs. Customer agrees to pay all sales, service, property, use, value-added or other local taxes applicable to the use of the Products and Services by Customer or any End User. If Customer or any End User incurs any third-party costs in connection with Customer’s use of KATANA’s Services (such as utility bills), Customer agrees that Customer will pay such costs and KATANA is not responsible for payment of those amounts, whether imposed on Customer or an End User.
4.7 Default. If Customer (a) fails to make any payment as scheduled (and such failure to pay is not cured within ten (10) business days’ notice from KATANA) or otherwise breaches the terms of this Agreement (and such breach, if capable of being cured, is not cured within thirty (30) days’ notice from KATANA), (b) becomes insolvent or admits in writing its inability to pay its debts as they mature or any bankruptcy is instituted by or against Customer which remains for 60 days undismissed or (c) any warranty, representation, statement or report made in writing by Customer in this Agreement or in any document or certificate furnished in connection with this Agreement or any financing (or leasing) obtained in connection with this Agreement proves to have been untrue or incorrect in any material respect, then KATANA may terminate this Agreement and KATANA shall be entitled to any and all available legal and equitable remedies.
5. CANCELLATION; TERMINATION
5.1 Termination. Unless otherwise set forth in the Order, Customer may not cancel the Services prior to the end of the initial subscription period or prior to the end of any automatic renewal subscription period, subject to Section 4.5 above. KATANA may terminate (or at Katana’s election, suspend) the Services and this Agreement in the event Customer (or its End Users) are in breach of this Agreement and such breach remains uncured (if such breach is capable of being cured) for a period of ten (10) days after notice by KATANA.
6. CUSTOMER’S KATANA ACCOUNT
6.1 Account Access. KATANA will provide Customer the opportunity to create a password-protected online account at the Site, through which Customer can manage Customer’s account and any changes must be performed by Customer’s account manager to change Customer’s subscriptions. Customer is responsible for maintaining the confidentiality of Customer’s user login, password and user codes, and Customer is responsible for all uses of Customer’s login, password and user codes, and any related changes, whether or not authorized by Customer, unless Customer’s login, password and user codes are compromised as a result of a breach of KATANA’s systems or security. Customer is also responsible for keeping all contact information (including billing information, email addresses and telephone numbers) current and accurate. Furthermore, KATANA may require End Users to register to access the Services. KATANA reserves the right to refuse registration of, or cancel usernames and/or passwords it deems inappropriate, illegal, maybe protected by trademark or other proprietary rights, is vulgar or otherwise offensive, or may cause confusion, as determined by KATANA in its sole and absolute discretion.
6.2 Responsibility for End Users. If Customer subscribes to KATANA’s Services or provides the Products for use by another person (such as a contractor, client or customer), that person is considered an “End User” of the Services under this Agreement. Customer agrees that, whenever this Agreement or KATANA’s rules or regulations impose any requirement or prohibition on the End User, Customer will cause all Customer’s End Users to comply with such requirement or prohibition and will be responsible for any noncompliance by any such End User. The System is not designed for, nor intended to be used without the knowledge and consent of any End User. End Users and all other persons who may use the System are bound by the this Agreement and Customer must also instruct each End User (if Customer is not the sole End User) on the proper use of the System. Customer will, and will cause any applicable End User to, use the System only in accordance with this Agreement. Customer represents and warrants that Customer’s end user agreement with each End User includes the obligations applicable to End Users in this Agreement and Customer is liable for any breach of this Agreement by any End User.
7. ACCESS RESTRICTIONS
7.1 Access Grant. Subject to the terms and conditions of the Agreement, KATANA grants to Customer and its End Users a limited, revocable, non-exclusive access to use the Services solely in connection with Products purchased hereunder during the Term and solely for Customer’s internal use and its End Users’ personal use. The Services and Products are proprietary to KATANA, subject to KATANA’s suppliers’ and licensors’ rights, and KATANA reserves all right, title and interest in and to the Services and Embedded Software, including all related software and intellectual property rights, and to all intellectual property rights in the Products. No rights are granted to Customer or any End User hereunder other than the limited access expressly set forth herein.
7.2 Restrictions. Except as expressly permitted herein, Customer shall not, and shall not permit any End User or third party to: (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise exploit or make the Products or Services available to any third party; (b) translate, adapt, modify, copy, update, revise, enhance, or otherwise alter or create derivative works of the Services and Embedded Software; (c) reverse engineer, disassemble or decompile (or attempt to reverse engineer, disassemble or decompile) any Services, Embedded Software or Products; (d) access the Services in order to (1) build a competitive product or service, or (2) copy any ideas, features, functions or graphics thereof; (e) intentionally send or store viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs; (f) intentionally interfere with or disrupt the integrity or performance of the Services; (g) attempt to gain unauthorized access to the Services or its related systems or networks; (h) use the Services for unlawful purposes or for any purpose not expressly permitted by the Agreement; (i) use any Products apart from the Services; (j) remove any proprietary notices or labels, or (k) make the Services or Products available to any third party other than End Users. If KATANA has reasonable grounds to believe that Customer is in violation of this Section 7.2, KATANA may suspend or terminate Customer’s and/or its End Users’ access to the Products or Services for cause pursuant to Section 5.1.
8. SUBMISSIONS; CONFIDENTIALITY
8.2 Confidentiality. “Confidential Information” means all information, data and materials obtained directly or indirectly by one party (the Receiving party”) from the other (the “Disclosing party”) during the term of this Agreement, including personal information, whether communicated orally, electronically or in writing, or obtained by the Receiving party through observation. The Receiving party shall not, during or after the term of this Agreement, (a) use the Confidential Information for any purpose other than that for which it was intended, or (b) disclose the Confidential Information to any third party without the advance written consent of the Disclosing party. It is understood that, as between the parties, the Confidential Information shall remain the sole property of the Disclosing party. The Receiving party shall take all reasonable precautions necessary to prevent any unauthorized copying, use or disclosure of such Confidential Information. The Receiving party may disclose Confidential Information to its employees or subcontractors only on a “need to know” basis, and shall require that each employee or subcontractor with access to the Confidential Information execute a nondisclosure agreement containing obligations equivalent to those set forth in this Section 8. Confidential Information does not include information which the Receiving party can prove (i) was known to the Receiving party at the time of disclosure, (ii) has become publicly known and made generally available through no wrongful act of the Receiving party, (iii) has been rightfully received by the Receiving party from a third party who, to the knowledge of Receiving party, is authorized to make such disclosure, (iv) is independently developed by the Receiving party without access to or reliance on the Confidential Information, or (v) is required by law to be disclosed by the Receiving party, provided that the Receiving party, if permitted by applicable law, gives the Disclosing party prompt written notice of such requirement prior to such disclosure and assistance in obtaining an order protecting the Confidential Information from public disclosure. Upon termination of this Agreement, or upon the Disclosing party’s earlier request, the Receiving party shall deliver to the Disclosing party all of the Disclosing party’s property or Confidential Information that the Receiving party may have in its possession or control or, at the option of the Disclosing party, destroy the original and all copies of such property or Confidential Information and certify to the Disclosing party in writing that such Confidential Information has been destroyed; provided that, the Receiving party may retain a back-up copy of the Disclosing party’s Confidential Information (i) as part of the archival records (including backup systems) that Receiving party keeps in the ordinary course of business, but only to the extent, and only as long as, required by Receiving party’s records retention policies or applicable law, and (ii) to the extent reasonably necessary in connection with enforcement of rights, duties, responsibilities or obligations under the Agreement. Any such retained Confidential Information shall continue to be subject to the provisions of this Section 8. Each party acknowledges and agrees that any violation or threatened violation of this Section 8 will cause irreparable injury to the other, entitling the other to obtain extraordinary relief in court, including but not limited to temporary restraining orders and preliminary or permanent injunctions, without the necessity of posting bond or security or of proving actual damages.
8.3 Security Incident. In the event of a Security Breach, KATANA shall: (a) notify Customer within twenty-four (24) hours of discovery by telephone and e-mail; (b) use reasonable efforts to resolve the Security Breach and remediate the effects of the Security Breach to the reasonable satisfaction of Customer and in conformity with applicable laws; and (c) if directed by Customer, assume responsibility for notifying all individuals as required to by applicable laws.. Concurrent with, or as soon as reasonably practicable following, KATANA’s notice of a Security Breach, KATANA will provide Customer with a written report regarding the extent of data exposure, if known, including the number and identity of affected individuals, if known, the status of remediation efforts and other relevant details of such breach as may be reasonably requested by Customer and known by KATANA. KATANA shall provide updated written reports to Customer at regular intervals as new material information becomes available or as reasonably requested by Customer and shall fully cooperate with Customer in the investigation of such security incident, including by providing Customer with any forensics or other reports relating to the Security Breach prepared by KATANA or by a third party on KATANA’s behalf. “Security Breach” means an actual or attempted act, omission, or event that compromises the security, confidentiality, availability, or integrity of personally identifiable information or the physical, technical, administrative, or organizational safeguards put in place by KATANA that relate to the protection of the security, confidentiality, or integrity of personally identifiable information.
9. PRODUCTS MAINTENANCE; DISCLAIMER OF WARRANTIES
9.1 Warranties; Maintenance. KATANA warrants that (a) the Services will be performed in a professional, workmanlike, and timely manner; (b) the System shall materially conform to the Documentation; (c) to KATANA’s actual knowledge, Customer’s permitted use of the System will not infringe the intellectual property rights of any third party; (d) it shall comply with all applicable laws and regulations in its performance of this Agreement and provision of the System; and (d) the System does not contain any viruses, worms, Trojan horses, and other similar harmful or destructive code. If, during the term of Customer’s subscription, the Products provided to Customer fail to operate in accordance with the Documentation, KATANA will repair or replace the Products at no additional charge.
9.2 LIMITATIONS; EXCLUSIONS. PLEASE NOTE THAT REPAIR OR REPLACEMENT OF DEFECTIVE PRODUCTS OR COMPONENT PARTS THEREOF IS KATANA’S SOLE OBLIGATION, AND CUSTOMER’S AND ITS END USERS’ SOLE AND EXCLUSIVE REMEDY FOR FAILURE OF THE PRODUCTS OR SYSTEM TO OPERATE IN ACCORDANCE WITH THE DOCUMENTATION. THE PRODUCT, SERVICES, AND SITE ARE PROVIDED AS SET FORTH HEREIN TO ASSIST END USER IN ENHANCING END USER’S ABILITY TO TAKE CONTROL OF END USER’S OWN PERSONAL SAFETY BY ALLOWING END USERS TO CONNECT WITH THEIR OWN, SELF-SELECTED SOCIAL SAFETY NETWORK. THE PRODUCT, SERVICE AND THE SITE ARE NOT DESIGNED NOR DO THEY PROVIDE ANY DETERRENT TO ANY EXTERNAL ACTIVITY THAT AN END USER MAY ENCOUNTER OR BE EXPOSED TO, WHETHER CRIMINAL OR OTHERWISE. EXCEPT AS PROVIDED IN THE AGREEMENT, THE SERVICE AND SITE, INCLUDING, WITHOUT LIMITATION, THE MATERIALS, INFORMATION, CONTENT, FUNCTIONS, SOFTWARE, SERVICES, PRODUCTS, TEXT, GRAPHICS, AND LINKS THEREON, ARE EACH PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED. WE ARE NOT RESPONSIBLE FOR THE CONTENT PROVIDED BY, OR THE CONDUCT OF, ANY END USER. EXCEPT AS PROVIDED IN THE AGREEMENT, KATANA DOES NOT MAKE ANY REPRESENTATION, WARRANTY OR GUARANTEE OF ANY KIND. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, KATANA DISCLAIMS ALL WARRANTIES NOT STATED HEREIN, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND WARRANTIES ARISING FROM TRADE USAGE, COURSE OF DEALING OR COURSE OF PERFORMANCE.KATANA DOES NOT REPRESENT OR WARRANT THAT THE FUNCTIONS CONTAINED IN THE SITE OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS WILL BE CORRECTED. KATANA DOES NOT MAKE ANY WARRANTIES OR REPRESENTATIONS THAT THE SYSTEM WILL BE AVAILABLE AND/OR UNINTERRUPTED AT ANY PARTICULAR TIME OR LOCATION. KATANA DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SYSTEM OR ANY HYPERLINKED WEBSITE OR SERVICE, AND KATANA WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN END USER AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED THROUGH THE SITE OR IN CONNECTION WITH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. ALL IMPLIED WARRANTIES INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR ANY SPECIAL PURPOSE, OR NON-INFRINGEMENT ARE DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. SOME STATES DO NOT ALLOW A LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO CUSTOMER.
10. LIMITATIONS ON LIABILITY
10.1 INDIRECT DAMAGES. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY OR THEIR OFFICERS, DIRECTORS, SHAREHOLDERS, VENDORS, CONTRACTORS, EMPLOYEES, ASSIGNS, SUBSIDIARIES OR AFFILIATES BE LIABLE TO THE OTHER PARTY, ANY END USER, OR ANY THIRD PARTY, WHETHER IN CONTRACT, TORT OR OTHERWISE, FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF SUCH DAMAGES ARE FORESEEABLE, AND WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM ANY ASPECT OF THE RELATIONSHIP PROVIDED FOR HEREIN. CUSTOMER EXPRESSLY AGREES AND ACKNOWLEDGES THAT THE FOREGOING LIMITATIONS OF LIABILITY FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES AND SHALL APPLY EVEN IF A LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
10.2 LIMITATION OF LIABILITY. Customer understands that: (a) KATANA is not an insurer of the health or personal safety of any End User; (b) the amount Customer pays to KATANA is based only on the value of the System KATANA provides; (c) notification systems may not always operate properly for various reasons; and (d) it is difficult to determine in advance what portion, if any, of any personal injury or death or property loss would be proximately caused by KATANA’s failure to perform, any KATANA Party’s negligence, or a failure of the System or Services. Therefore, Customer agrees that even if a court decides that KATANA’s breach of this Agreement, a failure of the System, or any KATANA Party’s negligence caused or allowed any harm or damage (whether personal injury, death or property loss) to Customer, an End User or anyone in or about the premises where the System is installed, except as provided in Section 10.3, the parties agree that the total liability of each party and their officers, directors, shareholders, vendors, contractors, employees, assigns, subsidiaries and affiliates shall be limited to the greater of (i) $1,000 and (ii) the amount paid and payable by Customer under this Agreement during the preceding twenty-four (24) months or, if the Agreement has been effective for less than twenty four (24) months, an amount equal to twenty four (24) months of fees at then current rates. The parties further agree that this shall be the only remedy regardless of what legal theory (including without limitation, negligence, breach of contract, breach of warranty or product liability) is used to determine that the other party (or any of the foregoing parties) was liable for the injury or loss. CUSTOMER ACKNOWLEDGES AND AGREES THAT IF KATANA WERE TO HAVE ANY LIABILITY GREATER THAN THE AMOUNTS DESCRIBED IN THIS AGREEMENT, KATANA’S RISK OF LIABILITY WOULD BE TOO GREAT AND KATANA COULD NOT PROVIDE KATANA’S SERVICES TO CUSTOMER. CUSTOMER ALSO ACKNOWLEDGES AND AGREES THAT CUSTOMER HAS SELECTED THE PRODUCTS AND SERVICES WITH A FULL UNDERSTANDING OF THE LIMITATION OF KATANA’S LIABILITY IN THIS AGREEMENT.
10.3 Exceptions. The limitations on liability and exclusion of certain damages set forth in this Section 10 shall not apply to a party’s gross negligence or willful misconduct.
10.4 Monitoring Services. To the extent that Customer or an End User elects to receive any monitoring services provided by or on behalf of KATANA, Customer understands that neither KATANA nor any third-party monitoring provider is an insurer of person, life, limb or property and that insurance covering personal injury, life and property loss shall be obtained by Customer or the End User, if so desired. KATANA is being paid for providing a system to provide notice of the occurrence of certain events. Customer acknowledges that the amounts being charged by KATANA are not sufficient to guarantee in any way that no loss or damage will occur and that KATANA is not assuming responsibility for any personal injury, loss of life, or property loss or damage which may occur even if due to KATANA’s or its agents’ negligent performance or which may arise due to the faulty operation of the system, the failure of services or the failure to perform said services. Because some jurisdictions do not allow certain limitations on warranties, or the exclusion or limitation of liability for consequential or incidental damages, the above disclaimer and limitations may not apply to Customer or to a particular End User.
11.1 Severability. If a court of competent jurisdiction finds any provision of this Agreement unlawful or unenforceable, that provision will be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement will continue in full force and effect. Customer and KATANA intend that all restrictions on use, disclaimers of warranties, limitations of responsibility and liability, exclusions of damages or other remedies, and indemnification rights of the parties in this Agreement shall be upheld and applied to the maximum extent permitted by law.
11.2 Entire Agreement. This Agreement (including Orders that reference this Agreement) constitutes the entire agreement between Customer and KATANA. By entering into this Agreement, Customer affirms that Customer is not relying on any other advice, advertisements, or any other representation, promise, condition, inducement, or warranty, express or implied, from any person that is not expressly and specifically set forth in writing in this Agreement. In the event of a conflict between this Agreement and any other communication, request, agreement or order (including any order form not supplied by KATANA), the terms of this Agreement shall prevail..
11.3 Assignment. Customer agrees that KATANA may assign KATANA’s rights to receive payment for subscription fees under this Agreement to a third party. In the event of such assignment, Customer agrees to accept communication from such third party and to make payment to such third party to the full extent as Customer would be obligated to make payment to KATANA hereunder. This Agreement is not assignable by Customer.
11.4 Governing Law. The validity, interpretation, and performance of this Agreement shall be controlled by and construed under the laws of the State of South Carolina, as if performed wholly within the state and without giving effect to the principles of conflicts of laws. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. Subject to the terms set forth in Appendix 1, any legal suit, action or proceeding arising out of or relating to this Agreement shall be commenced in the state and federal court located in Greenville County, State of South Carolina, and each party hereto irrevocably submits to the exclusive jurisdiction and venue of any such court in any such suit, action or proceeding and hereby waives any argument based on inconvenient forum; provided, however, that either party may seek injunctive relief in any court of competent jurisdiction. If any legal action or injunctive relief, is brought due to the breach or alleged hereof, the prevailing party in any final judgment, shall be entitled to the full amount of all reasonable expenses, including all court costs and actual attorney fees paid or incurred in good faith.
11.5 End Users. Customer is responsible for End User compliance with the terms and conditions of this Agreement that apply to End Users.
11.6 Notices. If Customer or KATANA wish to give the other party written notices under this Agreement, they must be (a) in writing, (b) if to Customer, sent by overnight courier, certified or registered mail, or other reliable means (with confirmation of delivery) to Customer’s address on the Order, with a copy to Customer’s email address on file with KATANA (or posted in Customer’s KATANA account if no email address is on file), (c) if to us, sent by overnight courier, certified or registered mail, or other reliable means (with confirmation of delivery) to 120 North Markley Street, Greenville, South Carolina 29601. Notices will be effective upon delivery.
11.7 Amendments. Neither party may amend any portion of this Agreement without a writing executed by both parties.
11.8 Independent Contractors. The relationship of the parties is that of independent contractors and neither Party has any authority to bind the other by contract or otherwise.
11.9 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be considered an original, and will become effective and binding upon the parties as of the Effective Date at such time as all the signatories hereto have signed a counterpart of this Agreement
THE PARTIES ACKNOWLEDGE AND AGREE THAT THEY HAVE READ THE TERMS AND CONDITIONS SET FORTH HEREIN AND INCORPORATED BY REFERENCE, AND HEREBY EXPRESSLY AGREES TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS.
IN WITNESS WHEREOF, the parties’ authorized signatories have duly executed this Agreement as of the date last signed below: This Agreement is not effective unless and until signed by both parties.
Dispute Resolution Terms
1. Customer and KATANA agree that, in the event of any disputes between us, we will first try to resolve it by talking with each other. Our customer service department is available to address any concerns Customer may have regarding the Services by email at email@example.com. Most matters can be resolved in this manner to our customer’s satisfaction.
2. IF WE ARE UNSUCCESSFUL IN RESOLVING OUR DISPUTES THROUGH GOOD FAITH NEGOTIATIONS, EITHER CUSTOMER OR WE MAY CHOOSE TO HAVE ANY DISPUTE AS TO THE SERVICES OR RELATED SERVICES, EXCEPT AS STATED BELOW, BETWEEN US DECIDED BY ARBITRATION AND NOT IN COURT OR BY JURY TRIAL. BOTH PARTIES ACKNOWLEDGE AND AGREE THAT IF ONE PARTY ELECTS TO HAVE A DISPUTE ARBITRATED, THE OTHER PARTY SHALL ARBITRATE THAT DISPUTE AND HEREBY WAIVES THE RIGHT TO A JURY TRIAL. IF A DISPUTE IS ARBITRATED, CUSTOMER WILL GIVE UP CUSTOMER’S RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST US INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATION ARE GENERALLY MORE LIMITED THAN IN A LAWSUIT, AND OTHER RIGHTS THAT CUSTOMER AND WE WOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION.
3. Except as otherwise stated below, any claim or dispute, whether in contract, tort, statute or otherwise (including the interpretation and scope of this clause, and the arbitrability of the claim or dispute), between Customer and us or our employees, agents, successors or assigns, which arises out of or relates to these Terms and Conditions, the Services, or the use of any information through the Services shall, at Customer’s or KATANA’s election, be resolved by neutral, binding arbitration and not by a court action. If claims are asserted against multiple parties, some of whom are not required to arbitrate, the claims subject to arbitration must be severed. The claim or dispute is to be arbitrated by a single arbitrator on an individual basis and not as a class action. Customer expressly waive any right Customer may have to arbitrate a class action. Arbitrations will be conducted in accordance with the rules of the American Arbitration Association (“AAA”), 335 Madison Ave., Floor 10, New York, NY 10017- 4605 (www.adr.org). Customer may get a copy of the rules by contacting the arbitration organization or visiting its website.
4. Arbitrators shall be attorneys or retired judges and shall be selected pursuant to the applicable rules. The arbitrator shall apply governing substantive law in making an award. The arbitration hearing shall be conducted in mutually agreed location or, if the parties are unable to agree, the arbitration hearing may be conducted remotely by videoconference. Each party shall be responsible for its own attorney, expert and other fees, unless awarded by the arbitrator under applicable law. If the chosen arbitration organization’s rules conflict with this clause, then the provisions of this clause shall control. The arbitrator’s award shall be final and binding on all parties, except that in the event the arbitrator’s award for a party is $0 or against a party is in excess of $100,000, or includes an award of injunctive relief against a party, that party may request a new arbitration under the rules of the arbitration organization by a three-arbitrator panel. The appealing party requesting new arbitration shall be responsible for their filing fee and other arbitration costs subject to a final determination by the arbitrators of a fair apportionment of costs. Any arbitration under this Arbitration Clause shall be governed by the Federal Arbitration Act (9 U.S.C. § 1 et. seq.) and not by any state law concerning arbitration.
5. Customer and KATANA retain any rights to self-help remedies and any rights to seek injunctive relief to protect intellectual property rights. Customer and KATANA retain the right to seek remedies in small claims court for disputes or claims within that court’s jurisdiction, unless such action is transferred, removed or appealed to a different court. Neither Customer nor KATANA waive the right to arbitrate by using self-help remedies or filing suit. Any court having jurisdiction may enter judgment on the arbitrator’s award. This clause shall survive any termination, cancellation, suspension, expiration or assignment of these Terms. If any part of this Arbitration Clause, other than waivers of class action rights, is deemed or found to be unenforceable for any reason, the remainder shall remain enforceable. If a waiver of class action rights is deemed or found to be unenforceable for any reason in a case in which class action allegations have been made, the remainder of this arbitration clause shall be unenforceable.
6. Notwithstanding any other provision of this arbitration clause, the validity and scope of the waiver of class action rights shall be decided by the court and not by the arbitrator.
7. APPLICABLE TO END USERS ONLY: THIS SECTION 7 IS ONLY APPLICABLE TO END USERS. UNLESS YOU AND KATANA AGREE OTHERWISE, THE ARBITRATION WILL BE CONDUCTED IN THE COUNTY WHERE THE END USER RESIDES. EACH PARTY WILL BE RESPONSIBLE FOR PAYING ANY FILING, ADMINISTRATIVE AND ARBITRATOR FEES IN ACCORDANCE WITH AAA RULES, EXCEPT THAT KATANA WILL PAY FOR YOUR REASONABLE FILING, ADMINISTRATIVE, AND ARBITRATOR FEES IF YOUR CLAIM FOR DAMAGES DOES NOT EXCEED $25,000 AND IS NON-FRIVOLOUS (AS MEASURED BY THE STANDARDS SET FORTH IN FEDERAL RULE OF CIVIL PROCEDURE 11(B)); PROVIDED, HOWEVER, IF THE ARBITRATOR DETERMINES THAT THE CLAIMS END USER ASSERTS IN ARBITRATION ARE FRIVOLOUS, END USER AGREES TO REIMBURSE KATANA FOR ALL COST AND EXPENSES ADVANCED AND PAID BY KATANA THAT END USER WOULD HAVE OTHERWISE BEEN OBLIGATED TO PAY UNDER THE APPLICABLE ARBITRATION RULES. THE AWARD RENDERED BY THE ARBITRATOR WILL INCLUDE COSTS OF ARBITRATION, REASONABLE ATTORNEYS’ FEES AND REASONABLE COSTS FOR EXPERT AND OTHER WITNESSES, AND ANY JUDGMENT ON THE AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED IN ANY COURT OF COMPETENT JURISDICTION.
NOTWITHSTANDING THE ABOVE, END USER OR KATANA MAY CHOOSE TO PURSUE A DISPUTE IN COURT AND NOT BY ARBITRATION IF (A) THE DISPUTE IS INITIATED IN SMALL CLAIMS COURT; OR (B) END USER OPT-OUTS OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT END USER AGREES TO THIS AGREEMENT (“OPT-OUT DEADLINE”). AN END USER MAY OPT OUT BY MAILING WRITTEN NOTIFICATION TO KATANA SAFETY, INC., ATTN: LEGAL DEPARTMENT, 120 NORTH MARKLEY STREET, GREENVILLE, SOUTH CAROLINA. 29601. END USER’S WRITTEN NOTIFICATION MUST INCLUDE (A) END USER’S NAME, (B) END USER’S ADDRESS, AND (C) A CLEAR STATEMENT THAT END USER DOES NOT WISH TO RESOLVE DISPUTES THROUGH ARBITRATION. END USER’S DECISION TO OPT-OUT WILL HAVE NO ADVERSE EFFECT ON END USER’S RELATIONSHIP WITH KATANA. END USER IS RESPONSIBLE FOR ENSURING KATANA’S RECEIPT OF END USER’S OPT OUT NOTICE, AND THEREFORE END USER MAY WISH TO SEND A NOTICE BY MEANS THAT PROVIDE A WRITTEN RECEIPT. ANY OPT-OUT REQUEST RECEIVED AFTER THE OPT-OUT DEADLINE WILL NOT BE VALID AND END USER MUST PURSUE ANY DISPUTE IN ARBITRATION OR SMALL CLAIMS COURT.