KX Insights Evaluation Agreement

CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS. BY CLICKING “I ACCEPT” OR BY INSTALLING, ACCESSING OR OTHERWISE USING THE SOFTWARE IN ANY MANNER, YOU ARE AGREEING ON YOUR OWN BEHALF AND IF APPLICABLE, THE ENTITY YOU REPRESENT’S BEHALF THAT YOU BOTH SHALL BE BOUND BY THESE TERMS AND CONDITIONS AND THAT YOU HAVE THE AUTHORITY TO BIND THE ENTITY TO LICENSE THE SOFTWARE (“COMPANY”). COMPANY WARRANTS THAT THE IDENTIFICATION DETAILS THAT ARE PROVIDED TO KX TO ACCESS THE SOFTWARE INCLUDING BUT NOT LIMITED TO NAME, EMAIL ADDRESS, LOCATION AND ORGANISATION OR ENTITY INFORMATION IS TRUE AND CORRECT. COMPANY ACCEPTS AND AGREES THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN AGREEMENT SIGNED AND IS LEGALLY BINDING. IF COMPANY DOES NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT DOWNLOAD THE SOFTWARE. DO NOT ACCESS THE SOFTWARE IF COMPANY IS A DIRECT COMPETITOR OF KX.

SECTION A – COMMERCIAL TERMS

1.	Software: KX Insights™ in its compiled form or where KX provides any elements in source, in source code form, together with any updates, enhancements or fixes.
2.	Hosting Services: KX will for the License Period, make available the Software to Company via KX’s public Cloud Provider account (“KX Hosting”), which may include additional support by KX where detailed in a Statement of Work.
3.	Licence Period: Two (2) weeks from the date these terms are accepted by Company unless otherwise agreed in a Statement of Work.
4.	Location: The Software will be deployed on KX’s Cloud Provider’s account, which shall remain under the administration and control of KX at all times. For the purposes of this Agreement, “Cloud Provider” means AWS, Azure or Google Cloud Platform, as agreed by the parties in writing (email is sufficient), or as detailed in an accompanying Statement of Work.
5.	Fees: None.
6.	Permitted Use: Subject to the license scope and restrictions set out in the Agreement and Company’s continued compliance with the terms of the Agreement, Company is permitted to use the Software for the sole purposes of Company internally evaluating the Software via the KX Hosting and to provide KX with Feedback and for no other purpose. Company may not use the Software from countries where such use is prohibited by Export Laws.
7.	Statement of Work:The parties may enter into a statement of work detailing the scope of the evaluation, to be agreed by both parties and expressed to be subject to the terms of this Agreement.

SECTION B – TERMS & CONDITIONS

1.	Scope. This KX Insights™ Evaluation Agreement (the “Agreement”) is made between KX Systems, Inc. (“KX”) and Company with respect to Company’s access and use of KX Insights™.
2.	Software Usage. A) Kx hereby grants Company a non-transferable, non-exclusive limited license, without right of sublicense, to access and use the Software (as described in Section A) for the License Period via the Kx Hosting for the Permitted Use (as described in Section A). (B) Company shall not and shall not permit any third party in any circumstances to: (i) view, access, or use the Software in any manner for any purpose other than the Permitted Use; (ii) use the Software for commercial, production, or quality assurance purposes; (iii) modify the Software or create derivative works; (iv) sell, lease, license or distribute the Software to any third party; (v) attempt to decompile or reverse engineer the Software; (vi) copy the Software (in whole or part); or (vii) distribute or otherwise make available to any third party any report regarding the performance of the Software, Software benchmarks or any information from such a report. Company shall put the necessary controls in place to give effect to the foregoing obligations and shall carry out regular due diligence to ensure Company’s compliance with this Agreement. Kx does not warrant or guarantee the correctness and completeness of the Software. The Software is not generally available, not validated and not quality assured in accordance with Kx’s standard processes and Company will use Software at its own risk. Company understands that the Software will, or Kx may automatically cause the Software to time-out at the end of the Licence Period
3.	KX Hosting. Subject to Company’s compliance with the terms of this Agreement, Kx hereby agrees to provide Kx Hosting for the License Period. In accessing the Kx Hosting, Company shall not introduce any malicious code or other viruses that may impact the Software. Failure to use reasonable care may result in a security compromise to the Software and to Kx and to Kx’s other customers and may result in Company being disconnected from the Software for which Kx accepts no liability. Furthermore, Kx shall not be liable for outages resulting from disconnection due to breached security. Any violation of Company’s obligations under this Agreement may result in suspension or termination of the Kx Hosting. Kx may be required to terminate the Kx Hosting upon the request of Kx’s Cloud Provider or where it could subject Kx, its affiliates, or any third party to liability. Kx accepts no liability for Company’s non-compliance with the terms detailed herein. Details of Kx’s current Cloud Provider standard terms and conditions can be found at https://aws.amazon.com/legal/; https://azure.microsoft.com/en-gb/support/legal/; or https://cloud.google.com/terms (which may be updated from time to time) as applicable. Company accepts and agrees to comply with the foregoing terms contained therein and to the extent Company does not comply with the Cloud Provider terms, they shall notify Kx immediately in writing. Company shall indemnify Kx against any loss or damage sustained or incurred by Kx as a result of Company’s misuse of the Kx Hosting (including any activities under Kx’s Cloud Provider’s account).
4.	Warranties. THE SOFTWARE IS PROVIDED “AS IS.” KX EXPRESSLY DISCLAIMS AND NEGATES ALL WARRANTIES FOR THE SOFTWARE, WHETHER EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE, AND KX SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF INTELLECTUAL PROPERTY OR OTHER VIOLATION OF RIGHTS. KX DOES NOT WARRANT THAT THE SOFTWARE WILL MEET END USER REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. THE SOFTWARE IS A BETA VERSION FOR WHICH NO COMMERCIAL OR PRODUCTION VERSION MAY BE AVAILABLE CURRENTLY OR IN THE FUTURE.
5.	Limitation of Liability. KX SHALL HAVE NO LIABILITY FOR ANY DAMAGES UNDER OR IN CONNECTION WITH THIS AGREEMENT. KX SHALL NOT BE LIABLE FOR ANY NEGLIGENCE OR TORTIOUS LOSSES NOR FOR LOSS OF PROFITS, LOSS OF USE, LOSS, DAMAGE TO OR CORRUPTION OF DATA, BUSINESS INTERRUPTION, NOR FOR PUNITIVE, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES OF ANY KIND, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS AND EXCLUSIONS OF LIABILITY WILL NOT APPLY TO THE EXTENT SUCH LIABILITY CANNOT BE LIMITED OR EXCLUDED BY APPLICABLE LAW.
6.	Intellectual Property. (A) Each party shall retain all of its rights, title and interest to any Intellectual Property Rights which were developed by a party either prior to or independently of this Agreement including without limitation all inventions, customizations, enhancements, improvements, updates and other modifications by whomsoever made. (B) Company acknowledges and agrees that KX owns all rights, title and interest in the Software (including without limitation all inventions, customizations, enhancements, improvements, updates and other modifications by whomsoever made) and the Intellectual Property Rights of whatever nature in the foregoing are and shall remain the property of KX. The use by Company of such proprietary rights is authorized only for the purposes set forth herein, and upon termination of this Agreement for any reason, such authorization will cease and Company will promptly return the Software to KX or erase all copies then in its possession and certify that it has complied with the foregoing requirements. Company acknowledges that the Software is proprietary and contains confidential and valuable trade secrets of KX, which Company agrees to safeguard as provided for under Clause 7, Confidentiality, below. Any rights not expressly granted herein are reserved to KX. For the purposes of this Agreement, “Intellectual Property Rights” means the (a) trade secret, know-how, copyright, database right, patent, trade mark, service mark, certification mark, trade or business name, design or other proprietary rights in any country, regardless of whether registerable, registered or otherwise; and (b) rights in connection with any applications, registrations or renewals in any country in connection with any of the foregoing. Company acknowledges that, in the course of providing the Software to Company, KX and its employees may develop and share with Company ideas, know-how, teaching techniques and other Intellectual Property Rights it develops under this Agreement. Ownership to those Intellectual Property Rights will remain with KX. As long as KX at all times observes the confidentiality provisions of this Agreement, KX will be entitled to use those Intellectual Property Rights for whatever purposes it sees fit, including in the services or software it provides to other customers.
7.	Confidentiality. As used in this Agreement, the term “Confidential Information” means (a) information disclosed in writing by one party to the other and marked confidential, (b) information disclosed orally by one party to the other and summarized in writing by the discloser and marked confidential, and (c) the Software, materials and documentation. Each party agrees that during the term of this Agreement and for a period of five (5) years thereafter, it will treat as confidential all Confidential Information of the other party, will not use such Confidential Information except as expressly set forth herein or otherwise authorized in writing, will implement reasonable procedures to prohibit the disclosure, duplication, misuse or removal of the other party’s Confidential Information and will not disclose such Confidential Information to any third party except as may be necessary and required in connection with the rights and obligations of such party under this Agreement, and subject to confidentiality obligations at least as protective as those set forth herein. Without limiting the foregoing, each party will use at least the same procedures and degree of care that it uses to prevent the disclosure of its own confidential information of like importance to prevent the disclosure of Confidential Information disclosed to it by the other party under this Agreement, but in no event less than reasonable care. The provisions of this Clause 7 shall not apply to information which (i) is or comes into the public domain through no fault of the recipient, its officers, employees, agents or contractors;(ii) is lawfully received from a third party free of any obligation of confidence at the time of its disclosure;(iii) is independently developed by the recipient, its officers, employees, agents or contractors; or (iv) is required by law, by regulatory authority, securities exchange, by court or governmental order to be disclosed provided that, to the extent permitted by law, prior to any disclosure, the recipient notifies the disclosing party. Each party agrees not to refer to the other party, or to the existence or subject matter of this Agreement, in any marketing or publicity material (or other communications of a similar nature) without the other party’s prior written consent except that KX may name Company as a customer.
8.	Term and Termination. (A) This Agreement shall commence on the date these terms are accepted by Company and subject to Clause 8(B), shall terminate at the end of the Licence Period, unless terminated earlier by KX at any time for any reason. (B) Forthwith upon the termination of this Agreement the Company shall discontinue use of the Software and any log ins, authorisations or materials provided by KX to access the KX Hosting. Company shall make no attempts to access or use the KX Hosting or KX Cloud Provider’s account. All Software and data within KX Hosting shall be deleted (regardless if it contains any Company data). Within five (5) business days after such termination, the Company shall either destroy or return to KX their access to the Software including any log ins, authorisations or materials in their possession and certify in writing to KX that they have been destroyed. (C) Any termination of this Agreement (howsoever occasioned) shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination. For the avoidance of doubt the following Clauses shall survive termination of this Agreement: Acceptance terms (pg 1), Section A, Section B 2(B), 3, 4, 5, 6, 7, 8(B) and (C), 9, 10,11,12,13, 14 and 15.
9.	Complete and Exclusive Agreement. This Agreement and any attachments (and Statement of Work where applicable) specifically incorporated therein forms the complete agreement and exclusive statement of the agreement between the parties thereto in relation to the subject matter and supersedes all prior agreements and undertakings whether written or oral in connection with this Agreement. Company hereby acknowledges that it has not been induced to enter into this Agreement by reason of any representation made by or on behalf of KX. The terms and conditions of this Agreement shall take precedence in the event of any conflict with any Company document or purchase order. Any modifications proposed by Company and any Company terms and conditions are hereby expressly rejected by KX and will not become part of the Agreement in the absence of KX’s written acceptance.
10.	Conflict. In the event of any conflict or inconsistency between a provision in the main part of this Agreement and any provision in a schedule or Section A (“Commercial Terms”) above, unless the relevant schedule or Section A (“Commercial Terms”) above expressly provides that such provision takes precedence over the terms of the main part of this Agreement (“Section B Terms and Conditions”), the terms of the main part of this Agreement will take precedence.
11.	Third Party Software. The Software may contain or be provided with components which are subject to the terms and conditions of “open source” software licenses or where applicable third party software licenses (“Third Party Software”) which may be identified by KX from time to time. The terms of such licenses will apply in lieu of the terms of this Agreement with respect to such Third Party Software, including, without limitation, any provisions governing access to source code, modification or reverse engineering.
12.	Dependencies. Company accepts and agrees that certain Software may require Company to have certain third party software and web services installed for Software to operate which may be identified by KX. Such third party software is made available by third parties and are subject to terms and conditions between Company and those third parties. Third party software and services licensed by Company are not part of the Software and the Agreement does not apply to them (regardless if KX recommends or references such software). Company shall at all times ensure that they are compliant with the terms of the Agreement with the third party software and that they are using the version of the Software recommended by KX in the documentation.
13.	Feedback. Company may provide KX with input, comments or suggestions, regarding KX’s business and technology and/or the possible creation, modification, correction, improvement or enhancement of the Software, products and/or services of KX, (collectively “Feedback”). The Company acknowledges and agrees that all Feedback will be the sole and exclusive property of KX and the Company hereby irrevocably assigns to KX and agrees to irrevocably assign to KX all of its right, title, and interest in and to all Feedback, including without limitation all worldwide Intellectual Property Rights and proprietary rights therein. At KX’s request and expense, the Company will execute documents and take such further acts as KX may reasonably request to assist KX to acquire, perfect, and maintain its Intellectual Property Rights and other legal protections for Feedback and materials incorporating same. KX accepts and agrees that Company has no liability for any Feedback which it provides to KX which KX acts upon.
14.	Export. Company acknowledges that the Software is subject to US export control and economic sanctions laws and regulations and to import laws, regulations and requirements of certain foreign governments (“Export Laws”). Company agrees to fully comply with those Export Laws in connection with the Software. Without prejudice to the generality of this Clause 14, Company shall not, and shall not allow any third party to acquire the Software, export or allow the re-export or re-transfer, directly or indirectly, of any part of the Software in violation of any Export Laws. Company shall not use the Software for any purpose other than the Permitted Use, and shall ensure (i) the Software will not be used for any purposes associated with chemical, biological or nuclear weapons or missiles capable of delivering such weapons, nor will it be resold if Company knows or suspects that it is intended or likely to be used for such a purpose; and (ii) the Software will not be re-exported or otherwise re-sold or transferred to a destination subject to US, UN, EU or OSCE embargo where that act would be in breach of the terms of that embargo; and (iii) that the Software or any copy or replica of the Software, will not be used in any nuclear explosive activity or unsafeguarded nuclear fuel cycle. The classification of Software for export purposes can be found at https://kx.com/export-statement/. Any dispute in relation to this Clause 14 shall be governed in accordance with Clause 15(E) below unless Export Laws determine otherwise.
15.	General. (A) Neither party shall be entitled to assign, sub-licence, lease or otherwise transfer the benefit or burden of any part of its rights under this Agreement. (B) No person other than the parties to this Agreement shall have the right to enforce any term of this Agreement. (C) The terms of this Agreement shall not be waived or amended except by written agreement between KX and the Company. (D) This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original of this Agreement, but all the counterparts shall together constitute the same Agreement. (E) This Agreement shall be governed by and construed by the laws of the State of New York, United States of America, except as to copyright matters covered by U.S. Federal law. The parties submit to the exclusive jurisdiction of the State of New York.

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KX INSIGHTS™ EVALUATION AGREEMENT

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