SECTION A – TERMS & CONDITIONS
- Scope. This Agreement including the Order Form (the “Agreement”) is made between the Supplier listed on the Order Form (“KX” “we” or “our”) and the Company listed on the Order Form (“Company” “you” or “your”) and relates to Company’s access and use of Software and if included in the Order Form Software Support Services as defined. All references hereunder to KX shall mean FD, unless the context otherwise requires. KX and Company are each a “Party” and together the “Parties”.
- Fees, Payment and Taxes. If the Order Form specifies any fees, all payments made under this Agreement are non-refundable. Without prejudice to KX’s other rights, KX may suspend or terminate your license to the Software if you become more than 60 days delinquent on your payments under this Agreement. Your fees under this Agreement exclude any taxes or duties payable in respect of the Software. To the extent that any such taxes or duties are payable by us, you must pay to us the amount of such taxes or duties in addition to any fees owed under this Agreement. Notwithstanding the foregoing, if you have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed, you may provide us with such exemption information, and we will use reasonable efforts to provide you with invoicing documents designed to enable you to obtain a refund or credit from the relevant revenue authority, if such a refund or credit is available. You will pay all fees net of any applicable withholding taxes. You and we will work together to avoid any withholding tax if exemptions, or a reduced treaty withholding rate, are available. If we qualify for a tax exemption, or a reduced treaty withholding rate, we will provide you with reasonable documentary proof. You will provide us reasonable evidence that you have paid the relevant authority for the sum withheld or deducted. If you fail to make any payment by the due date, you will pay interest in addition to the overdue amount at the lesser of (i) a rate of 4% per annum above Bank of America’s then-current base rate, and (ii) the maximum amount allowable under applicable law. This interest accrues on a daily basis until actual payment of the overdue amount.
- Software Usage. (A) Subject to your payment of fees where applicable, KX hereby grants Company a non-transferable, non-exclusive, limited license, without right of sublicense, to access and use the Software for the License Period, at the Location solely in connection with the Permitted Use. (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, duplicate, frame, mirror, translate, republish, rent, sublicense license or distribute the Software (in whole or in part) to any third party; (v) attempt to decompile or reverse engineer the Software; (vi) copy the Software (in whole or in part); (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; or (viii) use the Software in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property right or other right of any person or that violates any applicable law. 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. 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.
- Access. (A) Deployment. Where the Software is deployed on Company’s Equipment, KX will deliver a License Key to Company that allows Company to run the Software for the License Period. The License Key limits the Software to running on the named server and/or domain name at the Location. Company will not attempt to circumvent these restrictions. (B) KX Hosting. Where KX is providing Hosting Services and 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 illegal data or any data which infringes or misappropriates the rights of any third party, nor any malicious code or other viruses that may impact the Software and Company shall carry out scans that comply with good industry practice prior to uploading any content, information or code. Company shall not (i) store or transmit infringing, libellous, indecent, harmful or otherwise unlawful or tortious material or transmit material in violation (or which infringes) third-party rights; (ii) breach or attempt to breach any of KX’s third party providers’ systems or security related to the provision of the Hosting Service; (iii) interfere with or compromise the privacy, security or use of the Hosting Service. Failure to use reasonable care may result in a security compromise to the Software and to KX and to KX’s other customers and, without prejudice to its other rights, 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, without prejudice to KX’s other rights, 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 (where KX makes the Software available to Company via Company’s public Cloud Provider account) 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. Where 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 or breach of this Section 4(B) (including any activities under KX’s Cloud Provider’s account).
- Services. Where detailed in the Order Form, KX will provide Services in accordance with this Agreement. KX shall perform the Services in accordance with the timetable set out in the Order Form (if any). KX shall use all reasonable endeavours to meet the performance dates set out in the Order Form, but any such dates shall be estimates only. In the event of any delays in the Company’s provision of such assistance as agreed by the parties, KX may adjust any timetable or delivery schedule set out in the Order Form as reasonably necessary. Company shall provide KX with all necessary co-operation in relation to this Agreement and all necessary access to such information and systems, and shall timely furnish documentation, instructions, approvals or responses as may be required by KX in order to render the Services. Company shall be fully responsible for all applications, data, interfaces, hardware and equipment within its care, custody or control. The Company shall be responsible for obtaining all authorizations required by it to access and use all communications facilities, software, hardware and data feed services and distribution systems from its content providers and to obtain all necessary rights for KX as its service provider to access and/or use the foregoing in order to provide the Services contemplated in this Agreement
- 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.
- 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, CYBER SECURITY INCIDENTS, MALFUNCTION DOWNTIME OR SHUTDOWN BUSINESS INTERRUPTION, OR FAILURE TO STORE ANY DATA, SYSTEM INCOMPATIBILITY, FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION BUSINESS INTERRUPTION NOR FOR PUNITIVE, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES OF ANY KIND, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING, KX’S LIABILITY UNDER THIS AGREEMENT SHALL NOT IN ANY CIRCUMSTANCES EXCEED THE GREATER OF USD $1,000 OR THE TOTAL FEES PAID BY COMPANY IN THE TWELVE (12) MONTHS PRECEEDING THE CLAIM. THE FOREGOING LIMITATIONS AND EXCLUSIONS OF LIABILITY WILL NOT APPLY TO THE EXTENT SUCH LIABILITY CANNOT BE LIMITED OR EXCLUDED BY APPLICABLE LAW.
- Intellectual Property. (A) Each party shall retain all of its rights, title and interest to any Intellectual Property Rights which were or are 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 appurtenant thereto are and shall remain the property of KX. (C) Company acknowledges and agrees that KX owns all right, title and interest in any Feedback (whether registerable or unregisterable) arising during this Agreement. To the extent that any of the foregoing rights vests in you, such rights are hereby automatically assigned by you to 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 Section 9, Confidentiality, below. Any rights not expressly granted herein are reserved to KX.
- 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, (c) the Software, associated materials and documentation or (d) information that would otherwise that would be regarded as confidential by a reasonable business person under the circumstances of disclosure. 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 Section 9 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
- Term and Termination. (A) This Agreement shall commence on the Effective Date and subject to Section 10(B), shall terminate at the end of the Licence Period, unless extended (including by email) or terminated earlier by KX at any time for any reason (including if, in KX’s sole discretion upon notice to you, it deems Company to have breached Export Laws and/or become a restricted party (i.e., Company has been identified by any government or legal authority under applicable trade sanctions, export controls, anti-money laundering, non-proliferation, anti-terrorism or similar laws as a person or entity with whom trade or financial dealings and transactions by it or its Affiliates are prohibited or restricted). (B) Upon the termination of this Agreement, the Company shall discontinue use of the Software, License Keys, and any log ins, authorisations or materials provided by KX to access the KX Hosting. Where KX is providing 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 by KX (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 License Keys, log ins, authorisations or materials in their possession or return to KX their access to the Software, in ease case, where applicable, by erasing them from the media on which they are stored 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 Sections shall survive termination of this Agreement: Order Form, Sections 2, 3, 4, 5, 6, 7, 8(B) and (C), 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18.
- Complete and Exclusive Agreement. This Agreement and any attachments (where applicable) specifically incorporated therein form the complete agreement and exclusive statement of the agreement between the parties thereto in relation to the subject matter and supersedes all prior agreements (except where the Parties have entered into a Confidentiality Agreement, in which case the Confidentiality Agreement continues to apply) 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.
- Conflict. 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.
- Third Party 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 not to take any action or omit to take any action which would cause any breach of 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.
- Dependencies. Third Party Dependencies. You accept and agree that certain Software may require you to have third party software and web services installed for Software to operate, which may be identified by us as “Dependencies”. Such Dependencies are made available by third parties and are subject to terms and conditions between you and those third parties. Dependencies licensed by you are not part of the 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, where required, will procure our right to interoperate with the Dependencies to provide the Software Support Services, where applicable. We may, from time to time, update, change or modify the Software as a result of any changes to or unavailability of Dependencies which will be updated in the Documentation or as otherwise notified 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 notified to you 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 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
- (A) 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.kx.com. You determine and control the Interfaces (if any) to use in connection with the Software and accept and agree that Interfaces do not constitute Software and that our Support does not apply to them. By using an Interface in connection with the 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.kx.com. (B) Ancillary Tools. Where included with any 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 Software and only in accordance with the license to use the 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 Software and/or provide you with access to the Software in excess of your use rights duly obtained nor render or provide any information concerning the Software. You accept and agree that Software Support Services do not apply to Ancillary Tools.
- 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. including where applicable assisting in obtaining any necessary governmental approvals, licenses and undertakings. Without prejudice to the generality of this Section 16, Company shall not, and shall not allow any third party to use, export, re-export or transfer, directly or indirectly, of any part of the Software in violation of any Export Laws. A listing of U.S. Export Control Classification Numbers and U.S. license exceptions, to the extent applicable to the Software is available at following website: Export Statement – KX. Company represents and warrants that it will ensure (i) the Software will not be used for any purposes associated with chemical, biological or nuclear weapons or missiles or unmanned aerial vehicles capable of delivering such weapons, nuclear explosive activity or unsafeguarded nuclear fuel cycle, or any military-intelligence activity nor will it be resold (if reselling or sublicensing is permitted under the Agreement) 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 used, exported, re-exported or otherwise re-sold or transferred to a destination subject to US, UN, EU, UK or OSCE embargo where that act would be in breach of the terms of that embargo; (including but not limited to the Crimea region of Ukraine, Cuba, Iran, North Korea and Syria) (“Embargoed Countries”); and (iii) the Software, will not be used, exported, re-exported or otherwise re-sold or transferred to any party (a) listed on any U.S. or applicable non-U.S. sanctions- or export-related restricted or prohibited party list, including but not limited to the Specially Designated Nationals and Blocked Persons List maintained by the U.S. Department of the Treasury, the Entity, Denied Persons and Unverified Lists maintained by the U.S. Department of Commerce, the UN Security Council Consolidated List, and the EU Consolidated List, and the UK Office of Financial Sanctions Implementation’s Consolidated Financial Sanctions List; (b) any party that is, in the aggregate, 50% or greater owned, directly or indirectly, or otherwise controlled by parties described in (a); or (c) any party that is legally organized in, having a principal place of business in, or ordinarily resident in an Embargoed Country. Any dispute in relation to this Section 16 shall be governed in accordance with Section 18 below, unless Export Laws determine otherwise.
- Audit. During the License Period and for six (6) months thereafter, we may ask you to complete a self-audit process to confirm compliance with the terms of the Agreement regarding your use of the Software. You must promptly provide any information and documents that we reasonably request related to the verification. If we are not satisfied with the outcome of the self audit, acting reasonably, or you do not cooperate in full and promptly with such audit, you agree to allow us and/or our appointed accountancy or consultancy firm (“Auditors”) to audit pertinent records and visit any of your facilities (either your physical premises or, upon reasonable request by you, by remote or virtual access at the Location) for the purpose of conducting inspections of your use of the Software in order to confirm your compliance with the terms Agreement. 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. Non-co-operation with an audit will be considered a material breach of the Agreement by you.
- 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 and as set out in the Order Form (where applicable). (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) Where KX is the contracting party on the Order Form, 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 and those parties submit to the exclusive jurisdiction of the State of New York and where FD is the contracting party on the Order Form this Agreement shall be governed by and construed by the laws of England and Wales and those parties submit to the exclusive jurisdiction of England and Wales. (F) Company acknowledges and agrees that KX and its Affiliates may process personal data of the Company in connection with this Agreement in accordance with applicable laws. The Privacy Notice of KX and its Affiliates is available at https://firstderivatives.com/privacy-notice/. (G) KX reserves all rights not expressly granted to the Company in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, any rights to Company or any third party. (H) Each Party acknowledges that in entering into the Agreement it does not rely on and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Agreement or expressly incorporated herein. Each Party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Agreement.
ATTACHMENT A – DEFINITIONS
“Affiliate(s)” means with respect to any given Person, a Person that directly or indirectly Controls, is Controlled by, or is under common Control with the given Person. “Control” means, when used with respect to any Person, the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise, and the terms “Controlling” and “Controlled” have meanings correlative to this. “Person” means a natural person, partnership (whether general or limited), limited liability company, trust, estate, association, corporation, custodian, nominee or any other individual or entity in its own or any representative capacity or any governmental authority.
“Equipment” means either: (i) the Company’s designated standalone or shared file servers for the purposes of using the Software; or (ii) where the Software is being deployed on Company’s Cloud Provider servers, the standalone or shared file servers that are under the control of Company’s Cloud Provider.
“Feedback” means bug reports, input, comments or suggestions from you, regarding our business and technology and/or the possible creation, modification, correction, improvement or enhancement of our software, products and/or services, exclusive of your Confidential Information.
“Hosting Services” Where KX is providing Hosting Services, KX will for the License Period, make available the Software to Company via (i) KX’s public Cloud Provider account; or (ii) KX’s servers (“KX Hosting”).
“Intellectual Property Rights” means patents, utility models, rights to inventions, copyright and related rights, trade marks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, and any other intellectual property rights, whether registerable or not, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.
“License Key” means a confidential security code or electronic file that may be provided by KX to Company that enables the Software to be accessed by Licensee.
“Location”: As defined in the Order Form.
“Order Form” means the document detailing the scope of the evaluation, to be agreed by both parties and expressed to be subject to the terms of this Agreement.
“Release” means a version of the Licensed Software that would normally involve minor revisions, minor enhancements and/or bug fixes.
“Software” means the software listed on the Order Form, in its compiled form or if we provide any elements in source, in source code form, and if specified in the Order Form, all updates, enhancements and fixes provided by us to you (including as part of the Software Support Services), including where applicable Releases and Versions.
“Version” means a version of the Software involving entirely new features and/or functionality being added to the Software but excludes any New Product. “New Product” means our or any of our Affiliates’ software product that either: (a) provides significantly different or added functionality from the Software; or (b) is of significantly different design than the Software even if the new software product includes some of the functionality of the Software (in whole or in part).
“Software Support Services” means the software related support services to be provided by KX as set out in the Order Form, and subject to the provisions of the Software Support Terms available Software Support Terms | KX