CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS WHICH YOU AGREE TO BE BOUND BY AS FOLLOWS: (I) BY CLICKING “I ACCEPT” (OR SMILIAR) WHERE REQUESTED OR (II) BY INSTALLING, ACCESSING OR OTHERWISE USING THE SOFTWARE IN ANY MANNER. YOU ACKNOWLEDGE AND AGREE THAT THIS AGREEMENT IS ENFORCEABLE AND LEGALLY BINDING. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT DOWNLOAD THE SOFTWARE.

1. 1. Scope. This Agreement (the “Agreement”) is made between KX Systems Inc. (“KX” “we” or “our”) and you and relates to your access and use of the software which you are accessing by accepting this Agreement (the “Software”). KX and you are each a “Party” and together the “Parties”. If you are a Consumer, you have certain rights that cannot be limited by a contract like this Agreement. This Agreement is in no way intended to restrict those rights.
   2. License Restrictions:
      1. Software Usage. Subject to and provided you comply with the terms of the Agreement, we hereby grant to you a limited, non-transferable, non-exclusive license, without right of sublicense, for the applicable License Period to install and execute the Software in executable code form for use by you solely for the Permitted Use and subject to the Usage Restrictions – KX. You will not, and will not permit any third party to display, sell, rent, lease, license, sublicense, loan, lend, assign, publish, transfer, distribute or otherwise make available to any third party all or any portion of the Software or any features or functionality of the Software in any form or media or by any means or for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), time-sharing, service bureau, software as a service, cloud, or other technology or service. You will notify us without undue delay if you reasonably suspect or become aware of any unauthorized use or disclosure of the whole or part of the Software. In respect of the Software, you will not, and will not permit any third party to: (i) alter or modify, frame or mirror the whole or any part of the Software in any way whatsoever; (ii) disassemble, decompile, reverse engineer, unobfuscate or reduce any part of the same to human-readable form (except as required by law to the extent necessary to ensure the interoperability of the Software, subject to your obligations of confidentiality under the Agreement and to you having provided us with reasonable advance written notice of such intended activity and the opportunity to assist with or conduct such activity on your behalf and at your expense); (iii) combine or link the Software with Copyleft Materials; (iv) other than as expressly permitted by the Agreement, attempt to gain access to, discover or recreate the source code (from the object code or via any other means); (v) create any derivative works of the Software (in whole or in part); (vi) send or store Malicious Code; (vii) use or permit others to use the Software in violation of applicable law; (viii) transmit or generate any content or data that is unlawful or infringes any Intellectual Property Rights; (ix) work around any technical limitations in the Software; (x) use Third Party Software other than in accordance with the use rights that you have to the Software (except to the extent the terms of open source licenses applicable to Third Party Software prohibit any of the restrictions in this Agreement, in which event such restrictions will not apply to such Third Party Software); or (xi) use the Software (or any part of it) in order to build or offer a product or service (either for internal use or otherwise) which competes with, or provides the same or similar features, functionality or graphics of, the Software or otherwise use or copy any features, functions or graphics of the Software (or any part of it) . You will not remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other Intellectual Property Rights or proprietary markings or rights notices provided on or with the Software.
      2. No Commercial Use of Derivative Offerings. You may not use the Software licensed under this Agreement (the free of charge community edition), or any part thereof, to commercialise or distribute any software product, tool, or service that (a) interoperates with the Software as a required component or dependency, or (b) is intended to be used in conjunction with the Software, including through linking, bundling, or technical integration, where such product, tool, or service is made available on a commercial revenue generating basis.
      3. No Bundling or Distribution for Commercial Products. You may not bundle, incorporate, or otherwise distribute the Software with or as part of any other software or product, whether directly or by requiring end users to obtain the Software separately, if such software or product is made available for commercial revenue generating purposes.
      4. Prohibition on End User Use in Commercialised Products. You may not encourage, permit, or enable end users of your software, product, or service to use the Software in connection with any commercialised offering or product that you make available, regardless of whether the Software is distributed by you or separately obtained by the end user.
   3. Fees. The Software is licensed to you without charge.
   4. Access and Software Reporting. KX may deliver a License Key to you that allows you to run the Software. The License Key may limit the Software to running on such server and/or domain name as KX may reasonably determine. You will not attempt to circumvent these restrictions. The Software may periodically communicate with a license manager application running on a KX server by sending usage information to it to confirm that you have a valid license. If the license manager application determines that the use of the Software is not validly licensed, your license may be suspended or terminated. This 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.
   5. Services. The Software is licensed to you without any support or maintenance services, which may be provided at the sole discretion of KX.
   6. 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 YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE.
   7. Limitation of Liability. WE DO NOT EXCLUDE OR LIMIT IN ANY WAY OUR LIABILITY TO YOU WHERE IT WOULD BE UNLAWFUL TO DO SO, INCLUDING IN RESPECT OF DEATH OR PERSONAL INJURY CAUSED BY OUR NEGLIGENCE AND FRAUD OR FRAUDULENT MISREPRESENTATION. SUBJECT TO THE FOREGOING SENTENCE, (I) OUR LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR STRICT LIABILITY SHALL BE LIMITED TO US$100, AND (II) IF YOU ARE A BUSINESS USER, IN NO EVENT SHALL WE BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR OTHER SIMILAR DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGE TO REPUTATION, LOSS OF EARNINGS, LOSS OF PROFIT, LOSS OF BUSINESS OR BUSINESS OPPORTUNITY OR BUSINESS INTERRUPTION, INJURY TO FEELINGS IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT AND/OR THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. KX SHALL HAVE NO LIABILITY IN RELATION TO ANY MATERIALS OR DATA THAT YOU CHOOSE TO USE IN COMBINATION WITH THE SOFTWARE, OR IN RELATION TO ANY PURPOSES FOR WHICH THE SOFTWARE (OR ITS OUTPUTS) ARE USED. IT REMAINS YOUR RESPONSIBILITY TO ENSURE THAT YOU HAVE APPROPRIATE PERMISSIONS TO USE ANY MATERIALS AND DATA IN COMBINATION WITH THE SOFWARE, THAT YOU HAVE BACKED UP YOUR DATA , AND THAT YOUR USE OF THE SOFTWARE COMPLIES WITH ALL APPLICABLE LAWS AND REGULATIONS.
   8. Intellectual Property. We are the owner (or in relation to Third Party Software, an authorised licensee) of all right, title and interest in, the Intellectual Property Rights in the Software and any Feedback. Where any Intellectual Property Rights do not vest automatically in us, you hereby assign free of charge, all of your right, title and interest in such Feedback to us. For the avoidance of doubt, you disclaim all right, title, and interest in the Intellectual Property Rights in the Software and Feedback (whether in whole or in part). You irrevocably waive, to the extent permitted by applicable law, any and all claims you may now or hereafter have in any jurisdiction to so-called “moral rights” (or equivalent in any jurisdiction). You will not register any trademark, patent or copyright which uses or references any Intellectual Property Rights in the Software
   9. Confidentiality. 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. You will not disclose any benchmark, test or performance information or any report which contains a competitive analysis regarding the Software to any third party except as explicitly authorized in advance by us in writing.
   10. Term and Termination. This Agreement shall commence on the Effective Date and, subject to this clause 10, shall continue until terminated (on notice via email or on our website) by KX . KX may also terminate this Agreement at any time upon written notice to you if you materially breach any provision of this Agreement. Upon the termination of this Agreement, you shall discontinue use of the Software and within five (5) business days after such termination, you shall delete the Software. 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: clauses 2 and 6 to 16.
   11. Complete and Exclusive Agreement. This Agreement and the Usage Restrictions form the complete agreement and exclusive statement of the agreement between us in relation to the subject matter and supersede 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.
   12. Conflict. The terms and conditions of this Agreement shall take precedence in the event of any conflict with any other document or purchase order. Any modifications or terms proposed by you are hereby expressly rejected by KX and will not become part of the Agreement in the absence of KX’s written acceptance.
   13. Trade Control. You acknowledge that the Software (including its related technical data and services) may be deemed dual use and is subject to, without limitation, the export control laws and regulations of the United Kingdom, European Union, and United States of America (“Trade Control Laws”). You agree to fully comply with those Trade Control Laws in connection with the Software including where applicable assisting in obtaining any necessary governmental approvals, licenses and undertakings. You will not, and will 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 Trade Control Laws or to a destination subject to US, UN, EU, UK or Organisation for Security and Cooperation in Europe (OSCE) embargo, or to any individual or entity listed on the denied parties’ lists. A statement on the Export Controls applicable to the Software, is available at the following website: Export Statement – KX. Any dispute in relation to this clause 13 shall be governed in accordance with clause 15 unless Trade Control Laws determine otherwise. You acknowledge that we may not be permitted (and, in such an event, shall be excused from any requirement) to deliver or grant access to the Software, or perform support or services, due to an embargo, trade sanction or other comparable restrictive measure.
   14. Audit. During the License Period and for twelve (12) months thereafter, we may ask you to complete a self-audit process to confirm compliance with the terms of this Agreement. You must promptly provide any information and documents that we reasonably request related to the verification. If there is a material discrepancy showing that you have not complied with the terms of this Agreement, or you do not reasonably cooperate 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 within your control and/or, upon reasonable request by you, by remote or virtual access to your computers) for the purpose of conducting inspections of your use of the Software in order to confirm your compliance with the terms of this Agreement, including to perform an architecture review. You will reasonably cooperate with any audit/inspection and provide reasonable assistance and access to information. You are required to maintain computers, books, records, and accounts to the extent required to evidence your compliance with the terms of this Agreement and permit 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 and shall comply with your internal security policies and procedures. We will pay the fees associated with any such audit conducted by us (excluding your self-audit) unless you are a Business User and the audit discloses that you are or were in non-compliance with any material provision of the Agreement, in which case you will pay the costs of the audit (in addition to our other rights in respect of such non-compliance).
   15. Governing law and jurisdiction. 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 provided that if you are a Consumer, you can also bring claims against us in the courts of the country you live in and we can claim against you in the courts of the country you live in.
   16. 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 you. (D) KX and its Affiliates may process your personal data in connection with this Agreement in accordance with applicable laws and its Privacy Notice, which is available at Privacy Policy | KX. (E) KX reserves all rights not expressly granted to you 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 you or any third party (F) 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 the remedies for any claim for innocent or negligent misrepresentation based on any statement in this Agreement shall be limited to the remedies available for breach of contract.

 

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.

“Business User” means someone who is not a Consumer.

“Confidential Information” means (a) information, in any form, disclosed by a Party or its Affiliates (the “disclosing Party”) to the other Party or its Affiliates (the “receiving Party”) and which is marked or identified as confidential at the time of disclosure or otherwise that would be regarded as confidential by a reasonable business person under the circumstances of disclosure; and (b) the Software.

“Consumer” means an individual living in the United Kingdom or the EEA and acting for purposes that are wholly or mainly outside that individual’s trade, business, craft or profession.

“Copyleft Materials” means materials subject to any license that requires as a condition of use, modification, or distribution thereof, that such materials, or materials combined or distributed with such materials, be (1) disclosed or distributed in source code or similar form, (2) licensed for the purpose of making derivative works, or (3) redistributable at no charge.

“EEA” means the European Economic Area.

“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.

“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 you that enables the Software to be accessed by you.

“License Period” means the term of this Agreement as set out in clause 10.

“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.

“Permitted Use” means personal or internal business use.

“Software” means the software described at the point where this Agreement was presented to you, in its compiled form or if we provide any elements in source, in source code form.

“Third Party Software” means third party software or third-party open-source software or components which are included with the Software.

“Usage Restrictions” means any limitations or restrictions on use of the Software described at the point where this Agreement was presented to you.