SECTION A – TERMS & CONDITIONS

1. Scope. This Agreement (the "Agreement") is made between KX Systems Inc ("KX" “we” or “our”) and organization on behalf of which this Agreement is entered into (“Company” “you” or “your”) and relates to Company’s access and use of Software. KX and Company are each a “Party” and together the “Parties”. Defined terms as used in this Agreement are set out in Attachment A.


2. Software Usage. (A) Subject to your payment of fees where applicable, KX hereby grants Company a non-transferable, non- exclusive, limited license, without right of sublicense, to access and use the Software 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 Software in any manner for any purpose other than the Permitted Use; (ii) use the Software for commercial, production, or quality assurance purposes; (iii) modify the Software or create derivative works; (iv) sell, lease, duplicate, frame, mirror, translate, republish, rent, sublicense license or distribute the Software (in whole or in part) to any third party; (v) attempt to decompile or reverse engineer the Software; (vi) copy the Software (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 Software 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. KX does not warrant or guarantee the correctness and completeness of the Software. Company will use 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 License Period.


3. Access. Where the Software is deployed on Company’s Equipment, KX 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 name. Company will not attempt to circumvent these restrictions.


4. Support. KX may at its discretion provide support to Company in relation to the Software. 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 any support. 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 to access and/or use the foregoing in order to provide any support contemplated in this Agreement.


5. 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.


6. Limitation of Liability. KX SHALL HAVE NO LIABILITY FOR ANY DAMAGES UNDER OR IN CONNECTION WITH THIS AGREEMENT. KX 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. KX SHALL HAVE NO LIABILITY IN RELATION TO ANY MATERIALS OR DATA THAT THE COMPANY CHOOSES 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 IT 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. NOTWITHSTANDING THE FOREGOING, KX’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.


7. 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 KX 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 any learnings and outputs derived from the use of the Software by the Customer which can be used to improve or develop the Software) and the Intellectual Property Rights of whatever nature in appurtenant thereto are and shall remain the property of KX. (C) Company acknowledges and agrees that KX 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 KX. The use by Company of such proprietary rights is authorized only for the purposes set forth herein, and upon termination or expiry of this Agreement for any reason, such authorization will cease and Company will promptly cease using the Software and return the Software to KX 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 KX, which Company agrees to safeguard as provided for under Section 8, Confidentiality, below. Any rights not expressly granted herein are reserved to KX.


8. 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, 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 (except for a party’s trade secrets which shall be treated by the other party as Confidential Information for so long as it remains a trade secret), 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 8 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; (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; or (v) comprises learnings and outputs derived from the use of the Software by the Customer which can be used to improve or develop the Software. 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.


9. Term and Termination. (A) This Agreement shall commence on the Effective Date and subject to Section 9(B), shall terminate at the end of the License Period, unless extended (including by email) or terminated earlier by KX at any time for any reason (including if, in KX’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 and License Keys. ) (B) 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 2, 5, 6, 7, 8, 9, 10,11,12,13 and 14.


10. 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.


11. 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.


12. Export. 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 Section 12 shall be governed in accordance with Section 14 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.


13. Verification. During the License Period and for twelve (12) months thereafter, we may ask you to complete a self-audit process to confirm compliance with 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 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 computer systems) for the purpose of conducting inspections of your systems and of your use of the Software in order to confirm your compliance with 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 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).


14. General. (A) Neither party shall be entitled to assign, sub-license, 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. (D) 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. (E) 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 (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 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.

"Effective Date" means the date upon which this Agreement is accepted by Company.

"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.

"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 Customer.

"License Period" means a period of 90 days from the date upon which this Agreement is accepted by Company unless such period is extended by written agreement between the parties (which includes by email).

"Permitted Use" means for the purposes of evaluating the Software solely for its internal use, excluding and production or commercial use of the Software.

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

"Software" means kdb.ai, all updates, enhancements and fixes provided by us to you, including where applicable Releases and Versions.

"Version" means a version of the Software involving entirely new features and/or functionality being added to the Software.