Version Number: 1.0
Date last revised: 03 October 2022
Kdb+ on demand 64 bit personal edition is for your personal, non-commercial use. It may be used on up to 2 computers, to a maximum of 24 cores per computer. It cannot be used on any cloud, only your local environment. Kdb+ on demand requires an always on internet connection to operate. When installed, Kdb+ on demand sends ‘I’m alive’ packets out to our servers on a regular basis. Kdb+ on demand will exit if it is unable to send these packets. Details about the information sent in these packets are set out below. If you are interested in using 64 bit on demand in a commercial environment, please email firstname.lastname@example.org.
CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS. BY CLICKING ‘I ACCEPT’ OR DOWNLOADING THE KDB+ ON DEMAND SOFTWARE, YOU ACKNOWLEDGE AND AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS, WHICH MAY BE UPDATED FROM TIME TO TIME. “END USER” OR “YOU” MEANS YOU, THE USER OF KDB+ ON DEMAND SOFTWARE.
YOU WARRANT THAT THE IDENTIFICATION DETAILS AND INFORMATION THAT YOU PROVIDE TO US, INCLUDING BUT NOT LIMITED TO, YOUR NAME, EMAIL ADDRESS, LOCATION, TELEPHONE NUMBER AND INTENDED USE ARE TRUE AND CORRECT. YOU ACKNOWLEDGE AND AGREE THAT THIS AGREEMENT IS ENFORCEABLE AND LEGALLY BINDING.
DO NOT ACCESS KDB+ ON DEMAND SOFTWARE IF (I) AT ANY POINT PRIOR TO OR SUBSEQUENT TO THIS AGREEMENT, YOU HAVE BEEN NOTIFIED BY KX OR ITS AFFILIATES OF A POTENTIAL BREACH OF ANY LICENSE TERMS AGREED WITH KX OR ITS AFFILIATES, (II) YOU HAVE BEEN NOTIFIED OF AN AUDIT REQUEST BY KX OR ITS AFFILIATES (III) AT ANY TIME, YOU HAVE ENTERED, INTO ANY FORM OF LITIGATION OR PROCEEDINGS WHETHER THREATENED, ONGOING OR CONCLUDED (INCLUDING A SETTLEMENT) WITH KX OR ITS AFFILIATES. NO ACCESS OR USE OF KDB+ ON DEMAND SOFTWARE IS PERMITTED FROM THOSE COUNTRIES WHERE SUCH USE IS PROHIBITED BY TRADE CONTROL LAWS.
This Agreement is made between KX Systems, Inc. (“KX” or “we”) and the End User for access and use of KX’s Kdb+ On Demand Software, any updates, new versions and/or any documentation provided to you by KX (jointly, the “Kdb+ On Demand Software”) which is provided strictly for non-commercial purposes. Affiliates means with respect to any entity, an entity that directly or indirectly Controls, is Controlled by, or is under common Control with the given entity. “Control” means, when used with respect to any entity, the power to direct the management and policies of such entity, 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. You agree to use the Kdb+ On Demand Software subject to the terms and conditions set forth below which shall be subject to change from time to time.
1. LICENSE GRANTS
1.1 Grant of License. KX hereby grants End User a non-transferable, personal, non-exclusive license, without right of sublicense, to install the Kdb+ On Demand Software on the hard disk or other permanent storage media of a total of two (2) personal use computers in executable code form. The number of cores on which the Kdb+ On Demand Software is running may not exceed a total of twenty-four (24) cores per computer. End User shall use the Kdb+ On Demand Software solely for personal, non-commercial use. End User is not permitted, under any circumstances, to use the Kdb+ On Demand Software (a) for production, testing, disaster recovery, training or commercial use by End User or any other person or entity (b) for the benefit of a company, for profit entity, charitable organisation, social enterprise, government entity or educational institution (c) for any revenue generating purpose (d) for research or development of a product or application which may (i) be used now or in the future for a commercial purpose or (ii) be substantially similar in its expression or functionality to the Kdb+ On Demand Software (e) if End User is employed or contracted with an entity which has already licensed the Kdb+ On Demand Software prior to the date of this Agreement.
1.2 Kdb+ On Demand Software Use Restrictions. End User may not: (a) modify any part of the Kdb+ On Demand Software or create derivative works thereof (b) sell, lease, license or distribute the Kdb+ On Demand Software to any third party, (c) attempt to decompile, disassemble or reverse engineer the Kdb+ On Demand Software (d) copy the Kdb+ On Demand Software, except for purposes of installing and executing it on a single computer (e) use or attempt to use the Kdb+ On Demand Software in any way that is unlawful or fraudulent or has any unlawful or fraudulent purpose or effect or (f) use or attempt to use the Kdb+ On Demand Software in any way that would breach the license granted herein. End User is not permitted to use the Kdb+ On Demand Software on a third-party cloud provider’s service.
In addition to the foregoing, End User shall not in the course of using the Kdb+ On Demand Software access, store, distribute or transmit any Viruses, or any material that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
(f) is otherwise illegal or causes damage or injury to any person or property.
Virus means anything or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices. KX reserves the right, without liability or prejudice to its other rights against End User, to disable access to the Kdb+ On demand Software and/ or to any material that breaches the provisions of this section. End User agrees that it is reasonable that KX shall have no liability of any kind in any circumstances to it or a third party for any breach of the foregoing.
1.3 Kdb+ On Demand Software Performance. End User shall not distribute or otherwise make available to any third party any report regarding the performance of the Kdb+ On Demand Software, Kdb+ On Demand Software benchmarks or any information from such a report.
1.4 Disabling Features. End User understands that the Kdb+ On Demand Software contains a feature which will automatically cause it to time-out six (6) months from the date of installation, or such other date which KX identifies, at its discretion. KX may agree to extend use of the Kdb+ On Demand Software for a further six (6) months or such other period at KX’s option.
1.5 Kdb+ On Demand Software Reporting. The Kdb+ On Demand Software periodically communicates (approximately once per minute) with a license manager application running on a KX server by sending usage information to it to confirm that the End User has a valid license. If the license manager software determines that the Kdb+ On Demand Software use is not validly licensed, the End User’s access may be suspended or terminated.
(a) Information Reported. The following variables are reported to the license manager software (which are upon notice, subject to change):
• cpu mask as in sched_getaffinity(2)
• cpu usage as in getrusage(2)
Further information about the variables is available at https://code.kx.com
(b) Information Access. The reported information is only available to authorized KX personnel and its Affiliates and is not shared with third parties or used for any purpose other than license management.
(c) Non-Interference. End User agrees not to attempt to interfere, delay or in any way restrict the Kdb+ On Demand Software reporting.
1.6 Intellectual Property Ownership Rights. End User acknowledges and agrees that KX owns all rights, title and interest in and to the Kdb+ On Demand Software and in and to all of KX’s patents, trademarks, trade names, inventions, copyrights, know-how and trade secrets relating to its design, manufacture and operation, including all inventions, customizations, enhancements, improvements, updates, derivative works and other modifications and all related rights shall automatically vest in KX immediately upon creation. You will not register any trademark, patent or copyright which uses or references the Kdb+ On Demand Software or our Confidential Information. The use by End User 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. End User acknowledges that the Kdb+ On Demand Software is proprietary and contains confidential and valuable trade secrets of KX, which End User agrees to safeguard as provided for under section 6, Confidential Information.
1.7 Third Party Software. KX has the right to license the Kdb+ On Demand Software in compliance with the licenses of any Third-Party Software contained in the Kdb+ On Demand Software. “Third-Party Software” means third party software or open source software or components which are included with the Kdb+ On Demand Software and identified in any documentation. Notwithstanding, if there are any third party pass-through terms and conditions applicable to Third Party Software stated, those terms and conditions prevail over any conflicting or inconsistent terms of any component of the Agreement. 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. End User agrees 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.
2. NO SUPPORT OR MAINTENANCE. The Kdb+ On Demand Software is licensed to End User without any support (consulting services) or maintenance (error corrections).
3. FEES. The Kdb+ On Demand Software is licensed to End User without charge.
4. NO WARRANTY. THE KDB+ ON DEMAND SOFTWARE IS PROVIDED “AS IS.” KX EXPRESSLY DISCLAIMS AND NEGATES ALL WARRANTIES, WHETHER EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE, AND 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 KDB+ ON DEMAND SOFTWARE WILL MEET END USER REQUIREMENTS OR THAT THE OPERATION OF THE KDB+ ON DEMAND SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE.
5. LIMITATION OF LIABILITY. WE DO NOT EXCLUDE OR LIMIT IN ANY WAY OUR LIABILITY TO END USER WHERE IT WOULD BE UNLAWFUL TO DO SO. SUBJECT TO THE FOREGOING SENTENCE, KX SHALL HAVE NO LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, NOR FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR OTHER SIMILAR DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGE TO REPUTATION, LOSS OF EARNINGS AND INJURY TO FEELINGS IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT AND/OR THE USE OF OR INABILITY TO USE THE KDB+ ON DEMAND SOFTWARE, EVEN IF KX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER IS KX LIABLE FOR ANY BUSINESS LOSSES. THE KDB+ ON DEMAND SOFTWARE IS FOR PERSONAL AND PRIVATE USE AND KX WILL HAVE NO LIABILITY TO END USER FOR ANY LOSS OF PROFIT, LOSS OF BUSINESS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS OPPORTUNITY.
6. CONFIDENTIAL INFORMATION. As used in this Agreement, the term “Confidential Information” means data or information disclosed (i) in writing by one party to the other and marked confidential, (ii) orally by one party to the other and summarized in writing by the discloser and marked confidential, (iii) which a party ought to have known is confidential by its nature and (iv) the Kdb+ On Demand Software 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.
7. TERM AND TERMINATION OF AGREEMENT. This Agreement is appliable for the period that the Kdb+ On Demand Software is set to function when delivered to the End User, unless KX provides the End User with subsequent access with a later expiration, in which case this Agreement is extended for the additional period. Notwithstanding the foregoing, this Agreement shall terminate immediately upon KX’s written notice to End User and KX may at its discretion suspend or terminate End User’s access to the Kdb+ On Demand Software at any time. Upon termination of this Agreement or at any time upon KX’s written request, End User shall permanently delete or destroy all copies of the Kdb+ On Demand Software in its possession.
8. GOVERNING LAW AND JURISDICTION. This Agreement and all related documents and all matters arising out of or relating to this Agreement whether in contract, tort, or statute shall be governed by and construed in accordance with the laws of the State of New York, United States of America, except as to copyright matters covered by U.S. Federal Law. Each party irrevocably and unconditionally agrees to the exclusive jurisdiction of the State of New York, and it will not commence any action, litigation, or proceeding of any kind whatsoever against any other party in any way arising from or relating to this Agreement and all contemplated transactions, including, but not limited to, contract, equity, tort, fraud, and statutory claims, in any forum other than the State of New York (except as permitted by KX as detailed below). End User hereby waives any objections to venue in those courts. Each party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Should any provision of this Agreement be declared unenforceable in any jurisdiction, then such provision shall be deemed to be severed from this Agreement and shall not affect the remainder hereof. Furthermore, with respect to a violation by End User of Section 2 (License Grant), or for actions for injunctive relief to protect KX Confidential Information, KX will have the right at its discretion to seek remedies in courts of competent jurisdiction within any applicable territory. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer information Transactions Act, as currently enacted by any jurisdiction or as may be codified or amended from time to time by any jurisdiction, do not apply to this Agreement.
9. TRADE CONTROL. End User acknowledges that Kdb+ On Demand Software is subject to US export control and economic sanctions laws and regulations and to import laws, regulations and requirements of certain foreign governments (“Trade Control Laws”). End User agrees to fully comply with those Trade Control Laws in connection with Kdb+ On Demand Software including where applicable assisting in obtaining any necessary governmental approvals, licenses and undertakings. Without prejudice to the generality of this clause, End User will not, and will not allow any third party, to use, export, re-export or transfer, directly or indirectly, of any part of Kdb+ On Demand Software in violation of any Trade Control Laws. A listing of U.S. Export Control Classification Numbers and U.S. license exceptions, to the extent applicable to Kdb+ On Demand Software, is available at the following website: Export Statement | KX. End User represents and warrants that (i) Kdb+ On Demand 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 End User knows or suspects that it is intended or likely to be used for such a purpose; and (ii) Kdb+ On Demand 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) Kdb+ On Demand 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 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 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); (c) the Entity, Denied Persons and Unverified Lists maintained by the U.S. Department of Commerce; or (d) 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 9 shall be governed in accordance with section 8 unless Trade Control Laws determine otherwise. End User acknowledges that we may not be permitted (and, in such an event, shall be excused from any requirement) to deliver or grant access to Kdb+ On Demand Software, or perform support or services, due to an embargo, trade sanction or other comparable restrictive measure
11. GENERAL. This is the only Agreement between End User and KX relating to the Kdb+ On Demand Software. The provisions of section 1.6 (“Intellectual Property Ownership Rights”), section 4 (“No Warranty”), section 5 (“Limitation of Liability”), section 6 (“Confidential Information”), section 7 (“Term and Termination”), section 10 (“Data Protection”), section 11 (“General”) shall survive the termination of this Agreement for any reason. All other rights and obligations of the parties shall cease upon termination of this Agreement. This Agreement constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. You agree that you shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. You agree that you shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement 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, to you or any third party. If we fail to insist that you perform any of your obligations under this Agreement, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you and will not mean that you do not have to comply with those obligations. If we do waive a default by you, we will only do so in writing and that will not mean that we will automatically waive any later default by you.