Kdb Insights Enterprise Evaluation
kdb Insights Enterprise is made available to you for personal and, in the case of a corporate user, internal use for a limited time for your evaluation use only.
kdb Insights Enterprise Software License Agreement for Evaluation Use (“Agreement”)
CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS. BY CLICKING ‘I ACCEPT’ OR BY ACCESSING OR OTHERWISE USING THE KDB INSIGHTS ENTERPRISE 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 INSIGHTS ENTERPRISE 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.
NO ACCESS OR USE OF KDB INSIGHTS ENTERPRISE SOFTWARE IS PERMITTED FROM THOSE COUNTRIES WHERE SUCH USE IS PROHIBITED BY TRADE CONTROL LAWS.
YOU MAY NOT ACCESS THE KDB INSIGHTS ENTERPRISE SOFTWARE EITHER DIRECTLY OR THROUGH A THIRD PARTY (INCLUDING ANY CLOUD PROVIDER) IF (I) YOU ARE A DIRECT COMPETITOR OF KX; (II) AT ANY POINT PRIOR TO, DURING OR SUBSEQUENT TO THIS AGREEMENT, YOU HAVE BEEN NOTIFIED BY KX OR ANY OF ITS AFFILIATES OF A POTENTIAL BREACH OF ANY AGREEMENT WITH KX OR ANY OF ITS AFFILIATES; (III) YOU HAVE BEEN NOTIFIED OF AN AUDIT REQUEST BY KX OR ANY OF ITS AFFILIATES; (IV) AT ANY TIME, YOU HAVE ENTERED INTO ANY FORM OF LITIGATION OR PROCEEDINGS WHETHER THREATENED, ONGOING OR CONCLUDED (INCLUDING A SETTLEMENT) WITH KX OR ANY OF ITS AFFILIATES.
This Agreement is made between KX Systems, Inc. (“KX” or “we”) and the End User for access and use of KX’s kdb Insights Enterprise Software, any updates, new versions and/or any documentation provided to you by KX (jointly, the “kdb Insights Enterprise Software”) which is provided strictly for evaluation purposes only. 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 Insights Enterprise 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, non-exclusive limited license, without right of sublicense, to access and use the kdb Insights Enterprise Software. End User shall use the kdb Insights Enterprise Software solely for the purpose of evaluating the kdb Insights Enterprise Software for its internal or personal use. The licence granted for the kdb Insights Enterprise Software shall be for a limited period of 7 days (or such other period as KX may at its sole discretion notify to the End User) (the “License Period”). End User is not permitted, under any circumstances, to use the kdb Insights Enterprise Software (a) for production, testing, disaster recovery, or training (b) for the benefit of a third party 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 Insights Enterprise Software (e) if End User is employed or contracted with an entity which has already licensed the kdb Insights Enterprise Software prior to the date of this Agreement. We may make available to you certain datasets for use with the kdb Insights Enterprise Software. You are not obliged to use such datasets (with the kdb Insights Enterprise 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.
1.2 kdb Insights Enterprise Software Use Restrictions. In respect of the kdb Insights Enterprise 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 kdb Insights Enterprise 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 kdb Insights Enterprise 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 kdb Insights Enterprise Software with Copyleft Materials (being 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); (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 kdb Insights Enterprise Software (in whole or in part); (vi) send or store Malicious Code (meaning viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs); (vii) use or permit others to use the kdb Insights Enterprise 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 kdb Insights Enterprise Software for any unlawful purpose; (ix) work around any technical limitations in the kdb Insights Enterprise Software or restrictions in the documentation provided to you; (x) use Third Party Software other than in accordance with the use rights that you have to the kdb Insights Enterprise 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 kdb Insights Enterprise Software (or any part of it), KX’s Confidential Information or any KX intellectual property rights 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 kdb Insights Enterprise Software or otherwise use or copy any features, functions or graphics of the kdb Insights Enterprise Software (or any part of it) or any KX intellectual property rights. “Third Party Software” means third party software or third party open source software or components which are included with the kdb Insights Enterprise Software and identified to you
1.3 kdb Insights Enterprise Software Performance. End User will not disclose any benchmark, test or performance information or any report which contains a competitive analysis regarding the kdb Insights Enterprise Software to any third party except as explicitly authorized in advance by KX in writing.
1.4 Intellectual Property Ownership Rights. KX is 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 kdb Insights Enterprise Software. Any feedback, inventions, customizations, enhancements, improvements, updates, derivative works and other modifications of the kdb Insights Enterprise Software and all related intellectual property rights shall automatically vest in KX immediately upon creation.
1.5 User Data and Aggregated Statistics. KX may collect, compile and use de-identified data about your use of the Licensed Software. De-identified data is information that cannot identify you and is used by KX for analytical, research and marketing purposes and to improve the Licensed Software and our services. In addition, KX may monitor your use of the kdb Insights Enterprise Software and collect and compile data and information that is used by KX in an aggregate and de-identified manner, including but not limited to, (i) compiling statistical and performance information related to the provision and operation of the kdb Insights Enterprise Software and (ii) monitoring your usage (“Aggregated Statistics”). As between KX and you, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by KX. You acknowledge that KX may compile Aggregated Statistics based on user data input into the kdb Insights Enterprise Software. You agree that KX may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics for the furtherance of its own business purposes to the extent and in the manner permitted under applicable law, provided that such Aggregated Statistics do not identify you or your Confidential Information.
1.6 Deployment and Restrictions. Access to the kdb Insights Enterprise Software is available through the web address made available to you by KX. Subject to your compliance with the terms of this Agreement, KX hereby agrees to provide access to the kdb Insights Enterprise Software for the License Period via KX’s public Cloud Provider account (“KX Hosting”). In accessing the KX Hosting, you shall not introduce illegal data or any data which infringes or misappropriates the rights of any third party, nor any malicious code or other viruses that may impact the kdb Insights Enterprise Software and you shall carry out scans that comply with good industry practice prior to uploading any content, information or code. You shall not (i) store or transmit 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 KX Hosting; (iii) interfere with or compromise the privacy, security or use of the KX Hosting. Failure to use reasonable care may result in a security compromise to the kdb Insights Enterprise Software and to KX and to KX’s other customers and, without prejudice to its other rights, may result in you being disconnected from the kdb Insights Enterprise 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 your 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 or where it could subject KX, its Affiliates, or any third party to liability. KX accepts no liability for your 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/ (which may be updated from time to time) as applicable. Where applicable, you accept and agree to comply with the foregoing terms contained therein and to the extent you does not comply with the cloud provider terms, you shall notify KX immediately in writing. You shall indemnify KX against any loss or damage sustained or incurred by KX as a result of your misuse of the KX Hosting or breach of this Section 1.6. You acknowledge and agree that KX provides no guarantee that the kdb Insights Enterprise Software will be available for use at any given time. You may be required to wait for the kdb Insights Enterprise Software to become available. KX may, at its sole discretion, impose at any restrictions on how the kdb Insights Enterprise Software may be used, including in relation to time, volume of data storage, ingest rate, and query rate.
2. SUPPORT. KX may at its discretion provide support to End User in relation to the kdb Insights Enterprise Software.
3. FEES. The kdb Insights Enterprise Software is licensed to End User without charge.
4. NO WARRANTY. THE KDB INSIGHTS ENTERPRISE 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 AVAILABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF INTELLECTUAL PROPERTY OR OTHER VIOLATION OF RIGHTS. KX DOES NOT WARRANT THAT THE KDB INSIGHTS ENTERPRISE SOFTWARE WILL MEET END USER REQUIREMENTS OR THAT THE OPERATION OF THE KDB INSIGHTS ENTERPRISE 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 INSIGHTS ENTERPRISE SOFTWARE, EVEN IF KX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER IS KX LIABLE FOR ANY BUSINESS LOSSES. THE KDB INSIGHTS ENTERPRISE SOFTWARE IS FOR INTERNAL EVALUATION USE ONLY 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 Insights Enterprise 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 License Period, 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 Insights Enterprise Software at any time.
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. You acknowledge that kdb Insights Enterprise 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 kdb Insights Enterprise 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 kdb Insights Enterprise 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 kdb Insights Enterprise Software, is available at the following website: Export Statement – KX. Any dispute in relation to this clause 9 shall be governed in accordance with clause 8 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 kdb Insights Enterprise Software, or perform support or services, due to an embargo, trade sanction or other comparable restrictive measure
10. DATA PROTECTION. We agree to comply with our obligations under applicable Data Protection Laws. “Data Protection Laws” means any applicable data protection laws including, without limitation, the General Data Protection Regulation (EU) 2016/679 as it applies in the European Union (GDPR), the UK Data Protection Act 2018 and any other applicable legislation in respect of privacy and/or Processing Personal Data. The terms “personal data”, “processing”, “data subject”, “controller”, “processor” and “personal data breach” shall have the meaning given under the applicable Data Protection Laws. You can find information about how we collect and use your data in our privacy notice at Privacy Policy | KX. You acknowledge that we may pre-populate the kdb Insights Enterprise Software with data for you to use in the course of your evaluation. KX makes no warranty in relation to such data, and it is for evaluation purposes only. KX may prevent or limit the ability for End User to upload any data to the kdb Insights Enterprise Software. If End User is permitted to upload its own data to the kdb Insights Enterprise Software, KX accepts no liability in relation to such data. In the event that you provide your data to the kdb Insights Enterprise Software, you grant us a licence to use such data in the course of providing you with the kdb Insights Enterprise Software. You agree not to provide or make available to us in the kdb Insights Enterprise Software any credit card payment data, data related to a person’s financial affairs, any data relating to vulnerable persons or data relating to children, non-public personal identification data (such as a national identification number, passport number, social security number, or driver’s license number), or special category personal data (including personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation). In addition, you shall not upload to the kdb Insights Enterprise Software or to make available to KX or any of its Affiliates any patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act or any similar federal or state laws, rules or regulations (“HIPAA Data”) unless the Parties have entered into a business associate agreement governing the Parties’ respective obligations with respect to any such HIPAA Data. KX will have no liability under this Agreement for HIPAA Data, notwithstanding anything to the contrary in this Agreement or in any applicable federal or state laws, rules or regulations.
11. AUDIT. During the License Period and for six (6) months thereafter, we may ask you to complete a self-audit process to confirm compliance with the terms of the Agreement regarding your use of the kdb Insights Enterprise Software. You must promptly provide any information and documents that we reasonably request related to the verification. If we are not satisfied with the outcome of the self audit, acting reasonably, or you do not cooperate in full and promptly 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 or, upon reasonable request by you, by remote or virtual access) for the purpose of conducting inspections of your use of the kdb Insights Enterprise Software in order to confirm your compliance with the terms Agreement. You will cooperate with any audit/inspection and provide reasonable assistance and access to information. You are required to maintain computers, books, records and accounts of all transactions and activities covered by the Agreement and permit full 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. We will pay the fees associated with such audit unless the audit discloses that you are or were in material non-compliance with any material provision of the Agreement. Non-co-operation with an audit will be considered a material breach of the Agreement by you.
12. GENERAL. This is the only Agreement between End User and KX relating to the kdb Insights Enterprise Software. The provisions of section 1.4 (“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 (“Audit”), section 12 (“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. We will perform our obligations under this Agreement in compliance with any laws applicable to us, without regard to your specific use of the kdb Insights Enterprise Software. You will use the kdb Insights Enterprise Software in compliance with all laws applicable to you. Each Party will comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 and the US Foreign Corrupt Practices Act 1977.
