SECTION A – TERMS & CONDITIONS

1. Product Usage. (A) Licensor hereby grants Company a non-transferable, non-exclusive, limited license, without right of sublicense, to access and use the Product for the License Period 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 Product in any manner for any purpose other than the Permitted Use; (ii) use the Product for commercial, production, or quality assurance purposes; (iii) modify the Product or create derivative works; (iv) sell, lease, duplicate, frame, mirror, translate, republish, rent, sublicense license or distribute the Product (in whole or in part) to any third party; (v) attempt to decompile or reverse engineer the Software; (vi) copy the Product (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 Product 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. Licensor does not warrant or guarantee the correctness and completeness of the Product. Company will use Product at its own risk. Company understands that the Software will, or Licensor may automatically cause the Software to time-out at the end of the Licence Period. Customer shall indemnify Licensor and ICE Data Services (being the supplier of the Data) and their Affiliates and other third party licensors (collectively, the “Indemnitees”) against, and hold the Indemnitees harmless from, any and all losses, damages, liability, costs (including reasonable attorney's fees), resulting directly or indirectly from any claim or demand against the Indemnitees by a third party relating to the Data or any data, information, service, report, analysis or publication derived therefrom. The Indemnitees shall not be liable for any claim or demand against Customer by a third party relating to the Data, arising out of the use by Customer of the Data otherwise than in accordance with this Agreement.


2. Access. (A) Deployment. Where the Software is deployed on Company’s Equipment, Licensor 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. Company will not attempt to circumvent these restrictions


3. Warranties. THE SOFTWARE AND THE DATA ARE PROVIDED "AS IS." LICENSOR AND ICE DATA SERVICES EXPRESSLY DISCLAIM AND NEGATE ALL WARRANTIES FOR THE SOFTWARE AND THE DATA, WHETHER EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE, AND LICENSOR AND ICE DATA SERVICES SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF INTELLECTUAL PROPERTY OR OTHER VIOLATION OF RIGHTS. LICENSOR AND ICE DATA SERVICES DO NOT WARRANT THAT THE SOFTWARE OR THE DATA WILL MEET END USER REQUIREMENTS, THAT THE DATA IS ADEQAUTE, ACCURATE, TIMELY OR COMPLETE OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE.


4. LIMITATION OF LIABILITY. LICENSOR AND ICE DATA SERVICES SHALL HAVE NO LIABILITY FOR ANY DAMAGES UNDER OR IN CONNECTION WITH THIS AGREEMENT. LICENSOR 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, LICENSOR’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.


5. 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 Licensor 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 Licensor. (C) Company acknowledges and agrees that Licensor 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 Licensor. 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 Licensor 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 Licensor, which Company agrees to safeguard as provided for under Section 6, Confidentiality, below. Any rights not expressly granted herein are reserved to Licensor.


6. 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, the Data 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 6 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 provided that Licensor may disclose the existence of this Agreement and Company name to the supplier of the data, ICE Data Services.


7. Term and Termination. (A) This Agreement shall commence on the Effective Date and subject to Section 7(B), shall terminate at the end of the Licence Period, unless extended (including by email) or terminated earlier by Licensor at any time for any reason (including if, in Licensor’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, the Data, License Keys within five (5) business days after such termination, the Company shall (i) either destroy or return to Licensor their access to the Software including any License Keys in their possession or return to Licensor 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 Licensor that they have been destroyed and (ii) promptly delete or destroy all copies it may have of the Data; except that Customer may be permitted to retain the Data to the extent strictly necessary for regulatory document retention and archival purposes provided no productive use can be made of the Data. Upon Licensor’s request, Customer shall produce written certification signed by an authorized representative of Customer certifying that all Data has been purged from Customer’s systems, and copies or portions thereof and of all documents or other material containing any Confidential Information 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: Sections 1, 2, 3, 4, 5(B) and (C),6, 7, 8, 9, 10,11,12,13, 14 and 15.


8. 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 Licensor.


9. 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 Licensor and will not become part of the Agreement in the absence of Licensor's written acceptance.


10. 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.


11. 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. 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


12. (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 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.


13. Export. Company acknowledges that the technology subject to this agreement is subject to but not limited to the export control laws and regulations of the United Kingdom, European Union, and United States of America, and undertake to comply with these laws and regulations and the laws and regulations of any other applicable nation. The Company will not, export, re-export, or transfer any technology to a destination subject to US, UN, EU, UK or OSCE embargo, or to any individual or entity listed on the denied parties’ lists, either directly or indirectly, to any national of any country in breach of such trade control laws and regulations..


14. 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 Product. 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 to the Company Equipment) for the purpose of conducting inspections of your use of the Software and the Data 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.


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 Licensor 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 England and Wales and those parties submit to the exclusive jurisdiction of England and Wales (F) Company acknowledges and agrees that Licensor and its Affiliates may process personal data of the Company in connection with this Agreement in accordance with applicable laws. The Privacy Notice of Licensor and its Affiliates is available at Privacy Policy - FD Technologies plc. (G) Licensor 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.

“Data” means any cryptocurrency data sourced by Licensor from a third party and made available to Company for use in conjunction with the Software.

“Equipment” means either: (i) the Company’s designated standalone or shared file servers for the purposes of using the Product; or (ii) where the Product 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.

“ICE Data Services” means ICE Data Services Inc.

“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 Licensor to Company that enables the Software to be accessed by Licensee.

“License Period” The license period shall commence on the date of last signature (the “Effective Date”) and shall automatically expire 3 months thereafter, unless extended (including by email) or terminated in accordance with the terms of this Evaluation Agreement.

“Permitted Use”: Subject to the terms and conditions of this Agreement, Company is permitted to evaluate the Software solely for its internal use. No production or commercial use of the Software is permitted under this Agreement.

“Product” means the ‘Quant Starter Pack’ comprising collectively the Software and the Data.

“Release" means a version of the Software that would normally involve minor revisions, minor enhancements and/or bug fixes.

“Software” means KX Insights Core with Data Enablement pack and Dashboards Direct

"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).