Within this document, the terms “we”, “us”, “our” and “ourselves” refers to the Supplier defined in the Order Form and “you”, “your” and “yourselves” refers to the Customer defined in the Order Form.
Save where provided otherwise in these License Terms or the other documents comprising the Agreement, capitalised terms used herein shall have the meaning given in the General Terms.
1. SCOPE OF AGREEMENT
These License Terms, together with the Order Form and the documents referred to therein, set forth the terms on which we will license the Licensed Software to you.
2. ACCESS AND USAGE
2.1 Licensed Software Internal Use License Grant.
(a) Grant of Rights. Subject to and conditional upon your compliance with the terms of the Agreement and payment of all Fees owed, we hereby grant to you a limited, non-transferable, non-exclusive license, without right of sublicense, for the applicable Subscription Term (or in the case of the Dev and Test License, for the Dev and Test License Period) to install and execute the Licensed Software on Customer Computers in executable code form for internal use by you (and where permitted in the Order Form, your Authorised Affiliates) and Contractors solely for the applicable Permitted Use (and no other purpose) and in accordance with the Agreement and the other limitations specified in the Order Form.
(b) Usage Metrics. The license granted under clause 2.1(a) is subject to the Usage Metric Limitations as detailed in the applicable Order Form. Usage of the Licensed Software is calculated in accordance with the Usage Metrics and you must not exceed the Usage Metric Limitations. If you have licensed Kx Insights™, your usage will be subject to the KX Insights Usage Terms.
(c) Your Responsibility. You will for the duration of the Subscription Term or Dev and Test License Period, as applicable: (i) before commencing use of the Licensed Software in live operations (where such use is permitted) perform thorough testing on the Licensed Software to confirm freedom from defects; (ii) retain the Licensed Software and all copies thereof under your effective operational control; (iii) ensure appropriate precautions against the possibility that the Licensed Software or any part thereof does not function properly (including, without limitation, by performing data back-ups, error diagnosis and regular monitoring); and (iv) ensure that you are responsible for the data and content entered into the Licensed Software.
2.2 Restrictions on Licensed Software Use. The following restrictions apply to the license granted under clause 2.1(a) above:
(a) Your Use Only. You will not, and will not permit any third party to, display, sell, rent, lease, license, sublicense, loan, lend, assign, publish, transfer, distribute or otherwise make available to any third party (including any companies within the same Group as you, except Authorised Affiliates) all or any portion of the Licensed Software or any features or functionality of the Licensed Software and/or Documentation (as applicable) in any form or media or by any means or for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), time-sharing, service bureau, software as a service, cloud, or other technology or service. You will not allow installation of the Licensed Software on any computer other than a Customer Computer except as allowed under clause 2.2(c) below. You will notify us without undue delay if you reasonably suspect or become aware of any unauthorized use or disclosure of the whole or part of the Licensed Software or Documentation by any Person. In addition, you will give prompt written notice to us as soon as you become aware that your use of the Licensed Software has exceeded the Permitted Use. Upon our reasonable request and no more than annually, you will certify in writing that your use of the Licensed Software is in full compliance with the terms of the Agreement.
(b) Requirements for Use of Cloud Provider. Without prejudice to any other term of the Agreement, you will be permitted to use a third party Cloud Provider to host the Licensed Software on your behalf for your use as authorized under the Agreement provided that such provider meets the Cloud Provider Requirements. If the Cloud Provider does not meet the Cloud Provider Requirements, your use of the Cloud Provider must be approved by us in writing and in advance. You will remain responsible to us for the acts and omissions of Cloud Providers (and other third parties) you appoint.
(c) Hardware Hosting Services. Without prejudice to any other term of the Agreement, you will be permitted to have a third party provide Hardware Hosting Services for the Customer Computers on which the Licensed Software is installed. For the avoidance of doubt, you will remain responsible to us for the acts and omissions of third parties that you appoint to provide Hardware Hosting Services.
(d) Modifications of Licensed Software. In respect of the Licensed Software, you will not, and will not permit any third party to: (i) alter or modify, frame or mirror the whole or any part of the Licensed Software in any way whatsoever; (ii) save to the extent permitted by applicable law, disassemble, decompile, reverse engineer, or reduce any part of the same to human-readable form; (iii) combine or link the Licensed Software with Copy-Left materials; (iv) other than as expressly permitted by these License Terms, attempt to gain access to, discover or recreate the source code (from the object code or via any other means) including (without limitation) in order to (1) copy ideas, features, functions or graphics, (2) develop competing products or services, or (3) perform competitive analyses; (v) modify or prepare any derivative works of the Licensed Software (in whole or in part); (vi) send or store Malicious Code; (vii) use or permit others to use the Licensed Software in violation of applicable law or in breach of any Third Party Software license; (viii) transmit or generate any content or data that is unlawful or infringes any Intellectual Property Rights or (ix) during the Subscription Term and for five (5) years thereafter, use the Licensed Software (or any part of it) or any Supplier Intellectual Property Rights in order to build or offer a product or service (either for internal use or otherwise) which competes with, or provides the same or similar features, functionality or graphics of, the Licensed Software or otherwise use or copy any features, functions or graphics of the Licensed Software (or any part of it) or any Supplier Intellectual Property Rights.
(e) Copyright and Other Ownership Notices. Whenever you are permitted to copy or reproduce all or any part of the Licensed Software or Documentation, all titles, trade mark symbols, copyright symbols and legends, and other proprietary markings must be reproduced in the form provided by us. You will maintain the computers and media on which the Licensed Software and Documentation are copied in a secure place. You will not remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other Intellectual Property Rights or proprietary rights notices provided on or with the Licensed Software or Documentation, including any copy thereof.
(f) Third Party Dependencies. You accept and agree that certain Licensed Software may require you to have third party software and web services installed for Licensed Software to operate, which may be identified by us in the Documentation as “Dependencies”. Such Dependencies are made available by third parties (other than us or members of our Group) and are subject to terms and conditions between you and those third parties. Dependencies licensed by you are not part of the Licensed Software and the Agreement does not apply to them (regardless if we recommend or reference such software in our Documentation or if we facilitate the delivery to you). You will ensure that you comply with the terms, policies and licenses governing your use of the Dependencies and will procure our right to interoperate with the Dependencies to provide the Software Support Services. We may, from time to time, update, change or modify the Licensed Software as a result of any changes to or unavailability of Dependencies which will be updated in the Documentation or as otherwise noted by us (on our Nexus Repository Manager page as referenced in the Documentation or such other location or method as may be used by us from time to time). You will ensure that you are using the version of the Dependencies recommended by us in the Documentation or otherwise noted by us (on our Nexus Repository Manager page or such other location or method as may be used by us from time to time) as being the optimal version of the Dependencies to be used for or in connection with the Licensed Software. Under no circumstances shall we be liable for any Dependencies operated or used by you or any failure by you to install or use the recommended version of the Dependencies. You will indemnify and hold us harmless against all third-party claims, suits or proceedings against us in respect of use of the Dependencies by you (or by any third party on your behalf) or by us in order to provide the Software Support Services.
(g) Third Party Software. We have the right to license the Licensed Software to you in compliance with the licenses of any Third Party Software contained in the Licensed Software. Third Party Software will at all times be owned by the applicable third party and will be subject to any applicable third party license terms. You agree to comply with such licenses and that such licenses will apply in lieu of the terms of the Agreement with respect to such Third Party Software, including any provisions governing access to source code, modification or reverse engineering.
(h) Interfaces. We may provide free of charge libraries, interfaces, and APIs (collectively, “Interfaces”) which are made available by us from time to time and are subject to the applicable licenses referenced in those repositories or at our webpage code.staging.kx.com. You determine and control the Interfaces (if any) to use in connection with the Licensed Software and accept and agree that Interfaces do not constitute Licensed Software and that our Software Support Services do not apply to them. By using an Interface in connection with the Licensed Software and/or the receipt of any Services, you agree to do so in accordance with the applicable licenses referenced in the repository or webpage at code.staging.kx.com.
(i) Ancillary Tools. Where included with any Licensed Software, you may use other API, connectors or tools provided by us “Ancillary Tools” (but which shall not include Interfaces) for your own internal use together with the Licensed Software and only in accordance with the license to use the Licensed Software. You are responsible for any deficiencies in the running, security or performance of these tools including any developments by you in connection with the Ancillary Tools. Your software code must not (and subject to other limitations set out here) enable the bypassing or circumventing of any of the restrictions set out in the Licensed Software and/or provide you with access to the Licensed Software in excess of your use rights duly obtained nor render or provide any information concerning the Licensed Software. You accept and agree that our Software Support Services do not apply to Ancillary Tools.
(j) Copies of Licensed Software. You may make a reasonably necessary number of copies of the Licensed Software and Documentation on magnetic, non-volatile or optical media for backup purposes only, subject to all such copies being maintained in a secure manner. Where specified in the Order Form you will only install the applicable Licensed Software on the Operating Platform.
(k) Use of Virtualization Software. Where permitted in the Order Form, you may run the Licensed Software on a virtualization platform subject to any Usage Metric limitations as detailed in the Order Form and/or Software Support Terms.
(l) Future Functionality. You agree that you have not relied on the availability of any future functionality of any Licensed Software or any future product or service in executing the Agreement. You acknowledge that information provided by us regarding future functionality should not be relied upon to make a purchase decision.
(m) Verification. During the Subscription Term and for twelve (12) months thereafter, you agree to allow us and/or our appointed accountancy or consultancy firm (“Auditors”) to audit pertinent records and visit any of your facilities for the purpose of conducting inspections of Customer Computers and of your use of the Licensed Software in order to confirm your compliance with the Agreement, including to verify Licensed Software usage and perform an architecture review. You will cooperate with any audit/inspection and provide reasonable assistance and access to information. You are required to maintain computers, books, records and accounts of all transactions and activities covered by the Agreement and permit full examination and copying thereof by us and our Auditors. Inspections will be made during normal business hours at a mutually convenient time and upon reasonable advance notice of no less than fourteen (14) days. We and the Auditors will sign a confidentiality agreement covering such inspections and will agree to be accompanied by an Employee while on your premises. We will pay the fees associated with such audit unless the audit discloses that you are or were in material non-compliance with any material provision of the Agreement, in which case you will pay the costs of the audit (in addition to our other rights in respect of such non-compliance). Non-co-operation with an audit will be considered a material breach of the Agreement by you.
3. LICENSE KEYS
(a) Upon execution of the Agreement, we will send you interim License Keys. The interim License Keys allow you to operate the Subscription Licensed Software for one hundred and twenty (120) days, and the Dev and Test Licensed Software for the Dev and Test License Period specified in the Order Form, after which time the Licensed Software will no longer operate. Upon our receipt of the Fees for the license of the Subscription Licensed Software (“License Fee”) for the first year of the Initial Subscription Term, you will receive a key file (in place of the interim License Keys) which will operate until the next License Fee payment is due. Thereafter, we will provide new License Keys for the applicable Renewal Subscription Term subject to payment of the applicable License Fee.
(b) You undertake not to do any of the following without our prior written consent:
(i) disclose and/or transfer any License Key to a third party;
(ii) modify, tamper or use any License Key except as permitted in the Agreement; or
(iii) copy any License Key.
(c) Any breach of clause 3(b) above by you will be deemed a material breach that is not capable of being remedied, permitting us to terminate the Agreement immediately and without penalty or requirement for refund by us. You will indemnify us against any claims, expenses, loss or damage sustained or incurred by us arising from a breach by you of clause 3(b).
4. OUR RESPONSIBILITY
Software Support Services. We will provide the Software Support Services to you as detailed in the Software Support Terms for the duration of the Subscription Term.
5. OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS
(a) Our Intellectual Property Rights. We are the sole and exclusive owner of all right, title and interest in, the Supplier Intellectual Property Rights and any Feedback including all inventions, customizations, enhancements, improvements, Updates, derivative works and other modifications and all related Intellectual Property Rights shall automatically vest in us immediately upon creation. We own the media on which the Licensed Software is delivered. Any rights not expressly granted herein are reserved to us.
(b) Assignment. Where any Intellectual Property Rights do not vest automatically in us under clause 5(a), you hereby assign free of charges, all of your right, title and interest in such Supplier Intellectual Property Rights (including future Intellectual Property Rights by way of present assignment) upon their creation to us.
(c) Disclaimer. For the avoidance of doubt, you disclaim all right, title, and interest in the Supplier Intellectual Property Rights and Feedback (whether in whole or in part). You irrevocably waive, to the extent permitted by applicable law, any and all claims you or your Authorised Affiliates, Employees and Contractors (and their employees) may now or hereafter have in any jurisdiction to so-called “moral rights” (or equivalent in any jurisdiction). You will not apply for (including but not limited to any renewals or extensions) or register any software, patents, trademarks, trade names, inventions, copyrights, know-how or trade secrets relating to the design, manufacture and/or operation of the Supplier Intellectual Property Rights or our Intellectual Property Rights including to the extent any such application or registration includes any reference to Supplier Confidential Information or any aspect of the Supplier Intellectual Property Rights (whether in whole or in part).
6. WARRANTY
(a) Licensed Software Warranty. We warrant to you only, and not to any third party (including Authorised Affiliates), that the Subscription Licensed Software will perform substantially in accordance with the Documentation for a period of ninety (90) days from the Effective Date (“Warranty Period”). We do not warrant and we disclaim any implied warranty that the operation of any Licensed Software will be error free or uninterrupted or that such Licensed Software will achieve any intended result or that it will be compatible, work with or continue to work with third party software or hardware.
(b) Remedy. If during the Warranty Period the Subscription Licensed Software does not perform as warranted in clause 6(a) above, we will undertake to correct or replace the Subscription Licensed Software or, if correction or replacement of the Subscriptiom Licensed Software is not reasonably possible, we may terminate the Agreement and refund to you a pro-rata amount for the License Fees paid hereunder for the applicable Subscription Licensed Software for any remaining period of the Subscription Term. The foregoing are your sole and exclusive remedies for breach of this warranty.
7. TERM
(a) Term. The term of the license granted in respect of the Subscription Licensed Software shall commence on the Effective Date and shall continue until the Subscription Term has expired or has been terminated in accordance with the Agreement. The term of the license granted in respect of the Dev and Test Licensed Software shall commence on the Effective Date and shall continue until the Dev and Test License Peiod has expired or has been terminated in accordance with the Agreement.
(b) Return of Licensed Software. Upon termination of the Agreement (or expiry or termination of an applicable Subscription Term or Dev and Test License Period, as applicable) all rights granted under the Agreement shall cease and you will make no further use of any Licensed Software or Documentation which has been the subject of termination. Within five (5) Business Days after such termination of the Agreement or termination or expiry of a Subscription Term or Dev and Test License Period (as applicable) for the applicable Licensed Software, you will either destroy or return to us the originals and all copies of the applicable Licensed Software and Documentation in your possession or under your control and you will certify to us your compliance with these requirements. These obligations apply to copies of the Licensed Software and Documentation in all forms, partial and complete, in all types of media and computer memory, and whether or not modified or combined with other materials. In addition, you will immediately cease to use all of our trademarks and, at our election, destroy or deliver to us all materials in your control or possession which bear such trademarks.
(c) Survival. Notwithstanding the expiry or earlier termination of the Agreement, the provisions of clauses 2.2(d), 2.2(m), 3 and 5 shall survive and continue to bind the parties.
