SECTION A – TERMS & CONDITIONS

1. 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 the Software and, if included in the Order Form, Software Support Services. Where FD is the Supplier noted on the Order Form, all references hereunder to KX shall mean FD. KX and Company are each a “Party” and together the “Parties”. Defined terms are set out in Appendix A.


2. Fees, Payment and Taxes. We shall invoice you for and you shall pay any fees due in accordance with the payment schedule set out in the Order Form. Fees and other charges imposed under the Agreement shall not include taxes, all of which will be your responsibility. You agree to pay or reimburse us for all taxes. You will not withhold, reduce or set-off any fees owed.


3. 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 licence, without right of sublicense, for the applicable License Period to install, execute and/ or use the Software for internal use by you solely for the Permitted Use. For the avoidance of doubt, and except as expressly permitted in the Order Form, the Permitted Use shall not at any time permit use of the Software in a production environment. 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 addition, you will give prompt written notice to us as soon as you become aware that your use of the Software has exceeded the Permitted Use. 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 or use the Software for any unlawful purpose; (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. KX does not warrant or guarantee the correctness and completeness of the Software. Company will use the 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. We may make available to you certain datasets for use with the Software. You are not obliged to use such datasets (with the Software or otherwise), but any such use is at your own risk. Any datasets that we may make available to you are provided “as is” and without any warranty, including as to their accuracy or completeness. We accept no liability for any use you may make of such datasets.


4. Hosted Software. Where KX is providing Hosted Services for the Software, Appendix B shall apply.


5. Services. Where included in the Order Form, KX will provide Services in accordance with this Agreement. KX shall use reasonable endeavours to perform the Services in accordance with the timetable set out in the Order Form (if any), 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.


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 END USER REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE.


7. Limitation of Liability. KX DOES NOT EXCLUDE OR LIMIT IN ANY WAY ITS LIABILITY TO THE COMPANY WHERE IT WOULD BE UNLAWFUL TO DO SO. SUBJECT TO THE FOREGOING SENTENCE, (I) KX’S 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) IN NO EVENT SHALL KX 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 KX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. KX SHALL HAVE NO LIABILITY IN RELATION TO ANY MATERIALS OR DATA THAT COMPANY MAY 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 COMPANY’S RESPONSIBILITY TO ENSURE THAT ITS HAS APPROPRIATE PERMISSIONS TO USE ANY MATERIALS AND DATA IN COMBINATION WITH THE SOFWARE, AND TO ENSURE THAT ITS 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 upon their creation 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 License Period and for a period of five (5) years afterwards, it: (i) will treat as confidential all Confidential Information of the other Party; (ii) will not use such Confidential Information except as expressly set out herein or otherwise authorized in writing; (iii) will implement reasonable procedures (using at least the same degree of care as it uses to protect its own Confidential Information) to prevent the disclosure, duplication, misuse or removal of the other Party's Confidential Information; and (iv) 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 the Agreement, and subject to confidentiality obligations at least as protective as those set out in the Agreement. Notwithstanding the foregoing, with respect to Confidential Information that qualifies for trade secret protection under applicable law, it shall be retained in confidence by the receiving Party until such protection is no longer available. The receiving Party of any Confidential Information will be responsible to the disclosing Party for any unauthorised disclosure of the disclosing Party’s Confidential Information by any third party to whom the receiving Party has directly or indirectly disclosed such Confidential Information. The restrictions in this clause 9 will not apply to information that: (i) the receiving Party can demonstrate was known to the receiving Party at the time of communication to it; (ii) has become publicly known through no wrongful act of the receiving Party; (iii) has been rightfully received from a third party authorized to make such communication without restriction of which the receiving Party was aware; (iv) has been independently developed by the receiving Party without access to or use of the Confidential Information; (v) has been approved for release by written authorization of the disclosing Party; or (vi) is required by law or regulation or the listing rules of a recognized stock exchange to which the receiving Party is subject to be disclosed, provided that if a Party is required to disclose the other Party’s Confidential Information pursuant to an order under law or regulation, that Party will, to the extent permitted by law, give the other Party sufficient notice of the disclosure to allow reasonable opportunity to object to and take necessary legal action to prevent the disclosure. 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. (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 at KX’s sole discretion upon notice to you). (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 within a reasonable period (regardless if it contains any Company data). Within five (5) business days after such termination, the Company shall delete the Software including any License Keys, log ins, authorisations or materials in its possession 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, 7, 8, 9, 10,11,12,13, 14, and 15.


11. 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.


12. 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.


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 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. 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 Privacy Policy | KX. (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.



APPENDIX 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.

“Cloud Provider” means the provider of the cloud on which the Software is deployed (e.g. Microsoft, AWS, GCP).

“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.

“Copyleft Materials” means 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.

“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/ KX Hosting” 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.

“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.

“License Period" means the License Period stated in the Order Form, unless such period is extended by written agreement between the parties (which includes by email).

“Location” means the location for deployment/ hosting of the Software as stated in the Order Form.

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

“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 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.

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

"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 if set out in the Order Form, and subject to the provisions of the Software Support Terms available at Software Support Terms V5.0 | KX.
 


APPENDIX B – HOSTING SERVICES


In accessing the KX Hosting, Company shall not (i) store or transmit personal information or 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; or (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. The relevant Cloud Provider will be indicated on the Order Form where KX is providing Hosting Services. 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 third party claim made against KX as a result of Company’s misuse of the KX Hosting or breach of this Appendix B.