CONTRACT AIDE/FAQs FOR LICENSE AGREEMENT FOR KX PRODUCTS ON MARKETPLACE

Thank you for choosing KX as your software provider. KX truly values your business, and we look forward to working with you. We kindly ask that you please share this document with your legal team together with the license agreement.

PRO-CUSTOMER CERTIFIED CONTRACT

We believe in treating our customers fairly and have gone to great lengths to ensure that our contract is not just good for us, but it’s good for our customers too. We are evangelical about frictionless contracting. “Balanced Terms” aren’t enough, we want to offer our customers terms that are deliberately slanted heavily in the customer’s favour.

TermScout are a leading independent contract rating organization who have provided a neutral assessment of our terms. We have also had them externally validated by four top-tier global legal tech firms. TermScout have awarded KX a rating of ‘Customer Favourable Terms’ which means our contract is one of the most customer friendly in our industry. You don’t have to take our word for it. See this page – Certified Contract | Kx Systems (termscout.com). You can feel safe using our “above market” contract as-is and we can both avoid the cost and delay of unnecessary negotiations.

BACKGROUND

Our software is deployed onto a customer’s own cloud system and is not a SaaS offering or KX hosted solution. We do not provide hardware or directly access your systems or premises.

LEGAL TERMS

The KX software is a ‘one-to-many offering’ and our legal terms are tailored to the software and services we provide and have been drafted accordingly to ensure consistency and uniformity across geographies and industries. Our license agreement was purpose-built for this type of transaction, so it has all the provisions that are needed for a deal of this type, and nothing extraneous. In addition, the cloud marketplaces are designed to facilitate ‘frictionless contracting’ with a simple clickthrough mechanism to access the software. Any deviation from our standard offering and terms will lead to unnecessary legal cycles and delay and we therefore insist customers use our agreement rather than asking us to
review and/or redline theirs.

ACCEPTANCE TESTING

KX offers free evaluations of its software and therefore, acceptance testing is not applicable.

LIABILITY LIMITS

KX offers standard limits on liability which are in line with industry norms (of 1x value of the fees paid in that year). We also offer a super cap for confidentiality and data protection breaches (of 2x value of the fees paid in that year). We have a mutual exclusion for certain indirect and consequential losses specific to software which is the market standard and benefits both parties for remote losses not in contemplation of the parties at the point of entering the agreement. As a deployed solution which is under your control once the software is provided to you, the potential scope of your losses is entirely outside of our control so it is standard for the types of indirect losses listed to be excluded.

As our IP is the heart of our business and its protection is paramount, any violation of the intellectual property rights of either party is excluded from the liability caps stated above. Given that such a violation of our IP would be so egregious to KX, we are unable to offer any dilution of this clause.

INDEMNITIES

We will indemnify you (on an uncapped basis) for any third-party claims brought against you for any violation by us of any third-party IP (subject to standard exclusions e.g. your negligence, modification of our software etc). In return, we require you to indemnify us (on an uncapped basis) for any third-party claims brought against us in connection with your violation of our intellectual property rights in the software. We do not offer or expect from you any other indemnities in accordance with industry norms.

WARRANTIES

We offer a standard 90-day performance warranty as well as a warranty that we will scan our software for malicious code prior to providing it to you. Please note, this is deployed software and not a SaaS model and so we do not offer a continuous warranty for your subscription term as we do not control or manage the software.

INFOSEC

As our software is deployed, infosec requirements around system and data hosting, privileged access, patch management, firewalls etc are all within your control and so not relevant to our agreement with you. We have our own information security policies which we adhere to which can be reviewed here. Security information in relation to the product, including our vulnerability policy, can also be found here. We believe that our own standards are robust and so we cannot agree to adhering to individual customer policies. We do not host the software or your data and so you remain responsible for the information security of your own systems.

OPEN SOURCE

Like most software products, we do use open source software within our products but we do not use open source software subject to a copyleft license. We simply ask that you use such software in the same way that you use our KX software (e.g. no reverse engineering or removal of copyright notices). A software bill of materials can be made available to you.

TERMINATION FOR CONVENIENCE

As KX’s business model is based on annual subscription licensing, if you terminate for convenience during the subscription term, we will not give you a refund of any annual license fees you have paid and you will remain liable for any license fees which would have been payable during any subscription term you committed to. We will not agree to any refunds of fees paid, except in the specific cases provided for in the agreement (e.g. breach of performance warranty).

GOVERNING LAW

New York law applies to our license agreement. We have chosen New York law as the courts of New York have significant experience of hearing international commercial disputes and KX has a presence in such jurisdiction. Please note we do not have the expertise or resources to enter into per country terms with every customer and we are not always likely to have a nexus with where you are based.

AUDIT

Like all software providers, KX requires the right to audit you to ensure that there is no breach of the license restrictions. We ask that you first conduct a self-audit, and only where you fail to do so or the self audit reveals a material discrepancy, you will permit us and our auditors to conduct an audit of pertinent records and of your systems (by remote or virtual access) at a time mutually convenient to both parties. This clause is critical to KX and we kindly ask that you recognise that we have limited the circumstances in which we can request an audit. The audit can be conducted by remote means or on your premises, and we are happy to be accompanied by one of your employees, to sign an NDA in advance and to comply with your information security policies.

DATA PROTECTION

The KX software is deployed and we don’t host your data or access your systems. We only hold business contact information (including names and email addresses) and details of the users of our Support Portal and we act as controller of that data and only process it in that capacity. In all circumstances, KX will act in accordance with applicable data protection laws.

MAINTENANCE REPORT

KX support and maintenance is standard across all customers, regardless of your location or industry, and we do not offer bespoke support under our maintenance model (if this is something you require, please contact our sales team). Our response times are not negotiable as we are providing the same level of support to all of our customers and we are committed to ensuring customer satisfaction. We are constantly working toward improving our SLAs and support obligations.

KX LEGAL TEAM

KX’s legal team is made up of industry experts who have worked in the tech space for a number of years. Our capabilities have been recognised by our shortlisting for, and achievement of, a number of external legal awards.