Version Number: 2.0
Date Last Revised: 23 March 2023
BY CLICKING “I ACCEPT” OR BY ACCESSING OR OTHERWISE USING THE KDB INSIGHTS ENTERPRISE MANAGED APP (“THE LICENSED SOFTWARE”) YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT (WHICH MAY BE UPDATED FROM TIME TO TIME). TO THE EXTENT YOU ARE ACTING ON BEHALF OF A PERMITTED ORGANISATION, YOU CONFIRM THAT YOU HAVE THE NECESSARY POWER AND AUTHORITY TO ACT ON THEIR BEHALF AND BIND THEM TO THIS AGREEMENT. YOU WARRANT THAT THE IDENTIFICATION DETAILS THAT YOU PROVIDE TO KX TO ACCESS THE LICENSED SOFTWARE AND DOCUMENTATION INCLUDING, BUT NOT LIMITED TO, YOUR NAME, EMAIL ADDRESS, TELEPHONE NUMBER, LOCATION AND ORGANISATION, ARE TRUE AND CORRECT. YOU ACCEPT AND AGREE THAT THIS AGREEMENT IS ENFORCEABLE AND LEGALLY BINDING.
Evaluation. We may offer the Licensed Software to you at no charge for reasonable amounts of usage, including free accounts and trial use (collectively, “Evaluation Products”) solely for internal evaluation. Your use of Evaluation Products is subject to any additional terms that we specify and is only permitted during the period which we designate as being available at no charge for evaluation (or, if not designated, until terminated in accordance with this Agreement). You acknowledge that you are responsible for your own fees for access to and usage of Microsoft Azure services and infrastructure which are payable directly to Microsoft Corporation during such evaluation period. Except as otherwise set forth in this section, the terms and conditions of this Agreement fully apply to Evaluation Products. We may modify or terminate your right to use Evaluation Products at any time and for any reason in our sole discretion, without liability to you. The Evaluation Products are provided “as is”. All information regarding the characteristics, features or performance of any Evaluation Products constitutes our Confidential Information. To the maximum extent permitted by applicable law, with respect to Evaluation Products we disclaim all obligations and liabilities, including but not limited to the Services, warranties (sections 7.1 and 7.2), indemnities (sections 8.1, 8.2 and 8.3) and liabilities (section 9.3). NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, OUR MAXIMUM AGGREGATE LIABILITY (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) TO YOU IN RESPECT OF EVALUATION PRODUCTS WILL BE US$100.
1.1 This Agreement is made between KX Systems, Inc. (“KX”, “Supplier”, “We” or “we”) and you, the person or entity (“User”, “Client” “You” or “you”) accessing kdb Insights Enterprise Managed App, any documentation relating thereto, which may be made available to you at code.kx.com (together “the Licensed Software”) and the managed services and software support services (“Services”) as set out in Schedule 2. Definitions are set out in Schedule 3. KX and User are each a “Party” and together the “Parties”.
1.2 kdb Insights Enterprise Managed App is a streaming analytics platform made available to you via Azure Marketplace at https://azure.microsoft.com/marketplace/ (“Azure Marketplace”) and available to run on Microsoft Azure (“Microsoft Azure” or “Cloud Provider”). Azure Marketplace and Microsoft Azure are owned and controlled by Microsoft Corporation. KX shall not in any way be liable for, and expressly disclaims all liability in respect of, the services provided to you by Cloud Provider (or any issues with the Licensed Software arising from Cloud Provider’s services), which services shall be subject to and governed by a separate agreement between you and Microsoft Corporation.
1.3 You are required to pay for access to and usage of the Licensed Software and receipt of the Services as specified in this Agreement. Subject to your payment of specified fees, you will have access to the Licensed Software to be used strictly by you within the Microsoft Azure environment. Notwithstanding the use of the Licensed Software via Microsoft Azure, we remain the owners of the Licensed Software at all times.
2.1 Except as otherwise provided in the Agreement, all payments made under this Agreement are non-refundable and your access and use of the Licensed Software is non-cancellable except as provided in the Agreement. Your use of the Licensed Software and the fees therefor are subject to the Usage Policy as specified on the Plans and Pricing page for the Licensed Software.
2.2 You agree that KX may use usage logging for billing purposes which will automatically record the information required to be included in the Usage Report (defined in the Usage Policy) and either, at KX’s option, (i) automatically send those reports to us or (ii) prepare them to be sent to us by you. You shall not (a) disable any such automatic logging or (b) implement any changes which block or restrict KX’s access to such logs. KX may ask you to grant it connectivity to a specific location so these Usage Reports can be exported automatically. You agree to remit all payments due to us under this Agreement to Microsoft Corporation (or its nominated recipient). Microsoft is our agent for the collection of fees and processing of refunds. Fees shall be payable on an annual basis in respect of annual subscription fees and on a monthly basis in respect of any on demand fees, in accordance with any invoice submitted to you. Unless otherwise stated on any given invoice, payment is due within 30 days of the invoice date. You agree that, should Microsoft Corporation fail to collect any sums payable to us, you shall remit such sums to us directly promptly upon our written request. You acknowledge and agree that we may increase the annual subscription fees or on demand fees (for excess usage) payable under this Agreement at the beginning of each Renewal Subscription Term (defined in clause 11.1 below). If we do not notify you of any such fee increase for any Renewal Subscription Term, fees shall automatically increase by 5% for each Renewal Subscription Term.
2.3 Failure to Pay Fees. Without prejudice to our other rights, we may suspend your license to use and access the Licensed Software and/or the Services if you become more than thirty (30) days delinquent on any payments under this Agreement. Our failure to exercise our rights under this section 2.3 shall not prohibit or affect our right to subsequently exercise them.
2.4 Taxes. Fees and other charges imposed under this Agreement shall not include taxes, all of which will be your responsibility. You agree to pay or reimburse us (or Microsoft as our agent) for all federal, state, dominion, provincial, or local sales, use, personal property, excise, withholding or other taxes, fees, or duties arising out of this Agreement or the transactions contemplated by this Agreement (other than taxes on our net income and on the payment of our employees’ salaries). You shall provide any records or information reasonably requested by us or by Microsoft Corporation in relation to payment of taxes or fees in respect of your use of the Licensed Software. You shall remain liable to us for any taxes that may be payable in respect of any use of the Licensed Software by your Permitted Users in accordance with section 3.2.
2.5 Overdue Amounts. If you fail to make any payment by the due date, you will pay interest in addition to the overdue amount at the rate of the lesser of 4% per annum above Bank of America’s base rate from time to time and the maximum rate allowable under applicable law. This interest accrues on a daily basis until actual payment of the overdue amount.
2.6 Set Off. You will not withhold, reduce or set-off any amounts owed to KX under this Agreement.
3.1 Provision of Access. Subject to and provided you comply with the terms and conditions of this Agreement, KX hereby grants to you a limited, non-exclusive, non-transferable right, without the right to grant sublicenses, during the Subscription Term to access and use the Licensed Software via Microsoft Azure only and solely for your internal (a) business operations and (b) development and testing of the Licensed Software. Nothing in this Agreement shall be construed as the grant of any license or other right to you, to or in respect of any Intellectual Property Rights or Confidential Information of KX except as expressly set forth herein. You may not access or use the Licensed Software from countries where such use is prohibited by Trade Control Laws (defined in Section 12.4 below).
3.2 Usage by Permitted Users. You may provide access to the Licensed Software to your Affiliates and to any third party service providers directly engaged by you to provide implementation services or develop capabilities relating to your use of the Licensed Software for your own internal use (together referred to as “Permitted Users”). You will be liable to and responsible for any losses, costs, expenses or damages incurred by, or claims received by, us as the result of the acts and/or omissions of your Permitted Users. You agree that any act or omission by any such Permitted Users that would be a breach of the Agreement if the Permitted User were a Party to the Agreement will be considered a breach by you. The rights of your Permitted Users with respect to the Licensed Software will be no greater than your rights, and the obligations of your Permitted Users with respect to the use of the Licensed Software will be no less than your obligations. You will take all such steps as are necessary to ensure that your Permitted Users comply with the terms and conditions of the Agreement to the same extent as you are obligated to comply with its terms and conditions.
3.3 High-Risk Activities. The Licensed Software is not designed or developed through the Cloud Provider’s platform for use in high-risk, hazardous environments requiring fail-safe performance, including without limitation in the operation of life support systems, implantable medical equipment, nuclear facilities, aircraft navigation or control systems, air traffic control, or weapons systems, or any other application in which the failure of the Licensed Software could lead to severe physical or environmental damages (“High Risk Activities”). You will not use the Licensed Software for High-Risk Activities without first seeking KX’s prior written approval.
4.1 Usage Restrictions. You agree that, except as specified in Section 3.2, (i) your access to the Licensed Software is solely for you and your Permitted Users and you will not allow or permit another Person to have any right to view, access or use the Licensed Software on your behalf; (ii) you shall not transfer, sell, copy, frame, mirror, sublicense, assign, publish, rent, loan or use the Licensed Software on a service bureau basis, distribute or otherwise deal in the Licensed Software 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), virtualization, time-sharing, service bureau, software as a service, cloud or other technology or service; and (iii) you shall not view, access or use the Licensed Software in any manner or for any purpose other than as expressly authorized in Section 3.1 above. You shall promptly notify KX in the event of any actual or suspected violation of this Section 4.1.
4.2 Additional Restrictions. You shall not and shall not permit another Person to (i) except to the extent required to be permitted by applicable law, attempt to de-compile, decode, reverse compile, disassemble, reverse engineer, unobfuscate or otherwise reduce to human-perceivable form all or any part of the Licensed Software, or attempt to gain access to the source code of the Licensed Software or any part thereof; (ii) alter, modify, create any derivative works or improvements of the Licensed Software whether or not patentable; (iii) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other Intellectual Property Rights or proprietary rights notices provided on or with the Licensed Software, including any copy thereof; (iv) use the Licensed 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, regulation, regulatory requirements pertaining to import and export arrangements, or any regulation relating to financial conduct, (v) work around any technical limitations in the Licensed Software or restrictions in the documentation; (vi) combine or link the Licensed Software with any Copyleft Materials; or (vii) use the Licensed Software to access, store, process, distribute or transmit any material that (a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (b) facilitates illegal activity; (c) depicts sexually explicit images; (d) promotes unlawful violence; (e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or (f) is otherwise illegal or violates the Cloud Provider’s own terms and conditions.
4.3 Security. When registering, you must provide us with the most up to date contact details for you, and you must notify us promptly if this changes after your registration. This is to ensure we can alert you about any potential security incidents or vulnerabilities. You shall not and shall not permit another Person to do anything to compromise our user registration process, the security of the Cloud Provider’s service, or related services or systems. You must immediately report suspected security events, including security incidents and vulnerabilities concerning the Licensed Software or Azure that you become aware of. You must promptly permit us to install the latest Releases, Patches or Versions of the Licensed Software and its dependencies. If a later Release, Patch or Version addresses a security incident or vulnerability, we will not be liable for any losses you may suffer as a result of any such incidents or vulnerabilities which occur if you do not permit us to install that Release, Patch or Version.
4.4 Malicious Code. In addition to the foregoing, you shall not and shall not permit another Person to use the Licensed Software to access, store, process, distribute or transmit any Malicious Code.
5.1 Access. Upon successful registration in accordance with our then-current registration procedures, you will be provided with access to the Licensed Software in Microsoft Azure only. Such access will continue for the duration of the applicable Subscription Term unless (i) the Agreement is terminated or your access is suspended in accordance with the terms of the Agreement or (ii) you fail to maintain your subscription with Cloud Provider for Microsoft Azure.
5.2 Reporting to KX. In accordance with Section 2.2, you are responsible for permitting our access to your usage reporting and where requested, providing us with manual usage logs. Any attempt by you to disable or restrict us from having such access may result in your access being suspended or terminated. If our license manager software determines that you are not licensed to use the Licensed Software, we may, without prejudice to any other rights or remedies, suspend or terminate your access to the Licensed Software.
5.3 Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, KX may monitor your use of the Licensed Software and collect and compile data and information that is used by KX in an aggregate and de-identified manner as further detailed in Schedule 1, including but not limited to, (i) compiling statistical and performance information related to the provision and operation of the Licensed 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 Licensed 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.
5.4 Managed Services and Software Support Services. Subject to your payment of all fees due for the Licensed Software, we will provide you with the Services as detailed in Schedule 2 to this Agreement.
5.5 Verification. During the Subscription Term and for twelve (12) months thereafter, and no more than once per year (unless we reasonably suspect you are in breach of any term of the Agreement), we may ask you to complete a self-audit process to confirm compliance with the terms of section 4 of the Agreement regarding your use of the Licensed Software(“License Restrictions”) and any usage limitations, including the applicable Usage Policy set forth on the Plans and Pricing page (“Usage Limitations”). 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 License Restrictions or Usage Limitations, 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 in order to confirm your compliance with the terms of the Agreement regarding the use of the Licensed Software. 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 if we require access to your premises. 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).
6.1 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 Licensed Software. Any Feedback, inventions, customizations, enhancements, improvements, updates, derivative works and other modifications of the Licensed Software and all related Intellectual Property Rights shall automatically vest in us immediately upon creation. Where such 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 and other items upon their creation to us.
6.2 For the avoidance of doubt, you disclaim all right, title and interest in the Licensed Software and any 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 of KX’s Intellectual Property Rights.
7.1 Limited Warranty. We warrant to you that (i) the Licensed Software will perform substantially in accordance with the then-current documentation for the Licensed Software (which may be made available to you at code.kx.com) for a period of ninety (90) days from the date you are granted access to the Licensed Software pursuant to this Agreement (“Warranty Period”); (ii) we will use commercially reasonable steps to verify, using then current versions of industry standard anti-virus software, that the Licensed Software and any Release or Version thereof does not contain any Malicious Code on delivery to you; and (iii) the Licensed Software does not contain any Copyleft Materials. WE DO NOT WARRANT AND WE DISCLAIM ANY IMPLIED WARRANTY THAT THE OPERATION OF THE LICENSED SOFTWARE WILL BE ERROR FREE OR UNINTERRUPTED OR THAT THE LICENSED SOFTWARE WILL ACHIEVE ANY INTENDED RESULT OR THAT IT WILL BE COMPATIBLE, WORK WITH OR CONTINUE TO WORK WITH THIRD PARTY SOFTWARE OR HARDWARE OTHER THAN AS SET OUT IN THE DOCUMENTATION. WE ARE NOT RESPONSIBLE FOR ANY ANTI-VIRUS SOFTWARE OR VIRUS DETECTION ON YOUR SYSTEMS. YOU ACCEPT RESPONSIBILITY FOR THE SELECTION OF THE LICENSED SOFTWARE AND ACKNOWLEDGE THAT THE LICENSED SOFTWARE HAS NOT BEEN DEVELOPED TO MEET YOUR INDIVIDUAL REQUIREMENTS. YOU WILL BE SOLELY RESPONSIBLE FOR ANY ACTIONS YOU TAKE OR OMIT TO TAKE BASED ON THE OUTPUT OF THE LICENSED SOFTWARE OR SERVICES.
7.2 Remedy. If during the Warranty Period the Licensed Software does not perform as warranted in Section 7.1 above, we will undertake to correct or replace the Licensed Software or, if correction or replacement of the Licensed Software is not reasonably possible, we may terminate the Agreement and refund to you a pro-rata amount for any fees paid in advance hereunder for any remaining period of the Subscription Term. The foregoing are your sole and exclusive remedies for breach of this warranty.
7.3 OTHER THAN THE WARRANTIES EXPRESSLY STATED ABOVE OR DOCUMENTED ELSEWHERE IN THE AGREEMENT, NO EXPRESS OR IMPLIED WARRANTIES SHALL APPLY TO THE LICENSED SOFTWARE, ITS DOCUMENTATION OR SERVICES COVERED BY THE AGREEMENT WHICH SHALL BE PROVIDED ON AN “AS IS” BASIS. WE EXPRESSLY DISCLAIM ANY IMPLIED WARRANTIES THAT MAY APPLY, INCLUDING (WITHOUT LIMITATION) IN RELATION TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY AND NON-INFRINGEMENT
8.1 By KX. Subject to the remainder of this Section 8, we will defend you against, or at our option, settle any Infringement Claim. We will indemnify you from any damages and/or costs awarded against you or any Permitted User or agreed in settlement by us (including your reasonable attorney’s fees) in respect of the Infringement Claim.
8.2 KX Options. If any third party makes, or notifies an intention to make, a claim which may reasonably be considered likely to give rise to an Infringement Claim, or we reasonably conclude that the Licensed Software may be liable to an Infringement Claim, we will, at our own expense and option: (i) procure for you the right to continue to use the Licensed Software; or (ii) replace (within a reasonable period of time) the infringing components of the Licensed Software with other components with the same or similar functionality that are, in all material respects, acceptable to you (acting reasonably); or (iii) suitably modify the Licensed Software (within a reasonable period of time) so that it is non-infringing without material loss in functionality. If none of the foregoing options are available to us on commercially reasonable terms, we will have the right to terminate the Agreement without having any further liability to you except: (a) as provided in Section 8.1 above; and (b) we shall refund you a pro-rata amount of any fees paid in advance for any remaining period of the Subscription Term for which you are unable to use the Licensed Software. This Section 8 states our entire liability to you in respect of the Infringement Claim.
8.3 Limitation. Notwithstanding the provisions of Section 8.1, we assume no liability for, and do not indemnify you against: (i) infringements which would not have arisen without the combination by you of the Licensed Software with any other software or hardware products not approved by us or stated as compatible with the Licensed Software in the documentation; (ii) connections or integrations of the Licensed Software with any of your products or any of your components, whether enabled through APIs, third party software or Dependencies or otherwise; (iii) modifications to the Licensed Software made by any Person other than us or which are not made under our direction; (iv) the failure by you to permit us to install any Bug fix, Patch, release or Version (defined in Schedule 2) to the extent such infringement would have been avoided by the use of the current Version or installation of the Bug fix, release or Patch (as applicable); (v) trade mark infringements involving any marking or branding not applied by us or involving any marking or branding applied at your request and not approved by us; or (vi) infringements arising from your negligence or willful infringement.
8.4 By You. You will defend us against and indemnify us from any damages and/or costs awarded against us or any of our Affiliates or agreed in settlement by you (including reasonable attorneys’ fees) arising out of a claim, suit or proceeding brought by a third party arising out of or in connection with (i) your violation of any Intellectual Property Rights in or to the Licensed Software; (ii) our use of any third party software licenses, or services that you require us to use in order to provide you with access to the Licensed Software and/or the Services; and (iii) your use of the Licensed Software to process categories of data specified in Section 12.5 as being prohibited.
8.5 Indemnity Procedure. Each Party’s indemnification obligations (the “Indemnifying Party”) under this Section 8 are subject to the following obligations of the Party seeking indemnification hereunder (the “Indemnified Party”): Indemnified Party will: (a) as soon as reasonably practicable (and in any event no later than thirty (30) days after becoming aware of the possibility of any such claim), give the Indemnifying Party written notice of the claim for which it is seeking indemnification, specifying the nature of such claim in reasonable detail provided that failure by the Indemnified Party to give such notice to the Indemnifying Party shall not relieve the Indemnifying Party of its indemnification obligation under this Section 8 except to the extent that such failure materially disadvantages the Indemnifying Party; (b) not make any admission of liability, agreement, settlement or compromise in relation to such claim without the Indemnified Party’s prior written consent or otherwise prejudice Indemnifying Party’s defense of such claim; (c) provide reasonable cooperation and assistance to the Indemnifying Party at the Indemnifying Party’s cost and request in connection with such defense; and (d) give the Indemnifying Party sole control over and authority to avoid, dispute, settle or defend such Infringement Claim; provided that the Indemnifying Party will not settle any such claim without the Indemnified Party’s prior written consent (not to be unreasonably withheld, conditioned or delayed) unless the settlement unconditionally releases Indemnified Party from further liability, and does not place undue restrictions on its business, products or services.
9.1 EXCLUDED CLAIMS. THE LIMITATIONS SET OUT IN SECTIONS 9.2 AND 9.3 SHALL NOT APPLY TO CLAIMS THAT ARE NOT EXCLUDABLE UNDER APPLICABLE LAW (FOR EXAMPLE IF YOU ARE DOMICILED IN NEW YORK, GROSS NEGLIGENCE, WILLFUL MISCONDUCT) OR THAT ARE RESULTING FROM OR ARISING IN CONNECTION WITH: (A) A PARTY’S INDEMNIFICATION OBLIGATIONS SET OUT IN THIS AGREEMENT; (B) FRAUD; (C) DEATH OR BODILY INJURY ARISING FROM A PARTY’S NEGLIGENCE; (D) ANY VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS (COLLECTIVELY “EXCLUDED CLAIMS”).
9.2 EXCLUSION OF DAMAGES. EXCEPT FOR EXCLUDED CLAIMS, IN NO EVENT SHALL EITHER PARTY OR ITS AFFILIATES BE LIABLE FOR LOSS OF USE, CORRUPTION OF SOFTWARE, LOSS OR DAMAGE TO OR CORRUPTION OF DATA, LOSS OF OR DAMAGE TO GOODWILL, INTERRUPTION OF BUSINESS, LOSS OF PROFITS, LOSS OF SALES OR REVENUE, LOSS OF ANTICIPATED SAVINGS, WASTED EXPENDITURE (INCLUDING PROCUREMENT COSTS AND MANAGEMENT TIME) OR ANY CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, OR INDIRECT DAMAGES OF ANY KIND UNDER ANY CAUSE OR ACTION WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
9.3 LIABILITY CAP. SUBJECT TO SECTIONS 9.1 AND 9.2, THE AGGREGATE LIABILITY OF A PARTY, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND REPRESENTATIVES, FOR CLAIMS ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN AN ACTION IN CONTRACT OR TORT (INCLUDING NEGLIGENCE) FOR BREACH OF STATUTORY DUTY, WARRANTY, STRICT LIABILITY, PRODUCT LIABILITY, OR ANY OTHER FORM OF ACTION, SHALL BE LIMITED TO AN AMOUNT NOT EXCEEDING: (I) IN THE CASE OF A BREACH OF CLAUSE 10 OR CLAUSE 12.5 BY EITHER PARTY 200% OF THE FEES PAID OR PAYABLE TO MICROSOFT AS AGENT FOR KX BY YOU IN THE 12 MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY (“SUPER CAP”); AND (II) FOR ALL OTHER CLAIMS, 100% OF THE FEES PAID OR PAYABLE TO MICROSOFT AS AGENT FOR KX BY YOU UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY (“GENERAL CAP”). SUCH LIABILITY CAPS SHALL BE EXCLUSIVE OF ANY UNPAID FEES OWING BY YOU TO US.
9.4 CONCURRENT LIABILITY. IN NO EVENT SHALL WE BE LIABLE FOR THE SAME EVENT UNDER BOTH THE GENERAL CAP AND THE SUPER CAP. SIMILARLY, THOSE CAPS SHALL NOT BE CUMULATIVE; IF THERE ARE ONE OR MORE CLAIMS SUBJECT TO EACH OF THOSE CAPS, THE MAXIMUM TOTAL LIABILITY FOR ALL CLAIMS IN THE AGGREGATE SHALL NOT EXCEED THE SUPER CAP.
10.1 Confidential Information. As used in this Agreement, the term “Confidential Information” means information, in any form, disclosed by one Party to the other 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. KX’s Confidential Information will include the Licensed Software and any Aggregated Statistics.
10.2 Non-Disclosure. Each Party agrees that during the term of this Agreement 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 this 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 unauthorized 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.
10.3 Exceptions. The restrictions in clause 10.2 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; (vi) is required to be disclosed to Microsoft Corporation by us in order for us to provide the Services, collect our fees or otherwise comply with our obligations under this Agreement or our agreement with Microsoft; or (vii) 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.
10.4 Publicity. Neither Party will use the name, logo or trademarks of the other Party in any publicity without the prior written consent of the other.
10.5 Benchmark Test Results. You will not create or disclose any benchmark, test or performance information or any report which contains a competitive analysis regarding the Licensed Software or the Services to any third party except as explicitly authorized in advance by us in writing.
11.1 Subscription Term. Unless agreed otherwise in writing between the Parties, “Subscription Term” means an initial period of 12 months starting on the day upon which you have access to the Licensed Software (after conclusion of any evaluation period) and including all Renewal Subscription Term(s). Upon expiration of the then-current Subscription Term, a renewal term of 12 months duration (each a “Renewal Subscription Term”) shall automatically commence unless either Party notifies the other in writing of its intention not to renew not less than 60 days before the expiry of the applicable then-current Subscription Term.
11.2 Termination for Cause. Either Party may terminate this Agreement at any time upon written notice to the other party if (i) the other Party materially breaches any provision of this Agreement, which breach if curable is not cured within thirty (30) days after such other Party’s receipt of written notice thereof; (ii) the other Party becomes insolvent, is unable to pay its debts as they fall due or ceases to operate as a going concern; (iii) the other Party makes an assignment for the benefit of its creditors, (iv) if there are instituted by or against the other Party proceedings in insolvency, bankruptcy, reorganization, receivership or dissolution and such proceeding is not stayed or dismissed within sixty (60) days. We will be permitted to terminate or suspend the Agreement (including your ability to access the Licensed Software and/or renew your license for the Licensed Software) immediately on written notice to you if (a) you become more than 30 days delinquent on your Fee payment; (b) you breach Section 4.1 or 4.2, or (c) the power to conduct your affairs (whether by means of holding of shares, possession of voting rights, conferment of powers by articles of association or by any other means) is or becomes held by a Person or group of Persons whom we reasonably consider to be a direct competitor of ourselves without us having given consent to such change of control.
11.3 Azure Termination. This Agreement will automatically terminate if your Azure subscription is terminated.
11.4 Termination by Microsoft. You acknowledge that Microsoft Corporation has the right to terminate your access to the Licensed Software and our ability to provide the Services for convenience with 30 days’ notice and a 90 day winding-down period (or as Microsoft may otherwise determine). In the event that Microsoft Corporation exercises such right, this Agreement shall terminate at the end of such winding-down period.
11.5 Termination for Convenience. You may terminate the Agreement for convenience at any time during the Subscription Term upon giving us at least 30 days’ prior written notice.
11.6 Effect of Termination. Where you terminate for convenience, the Agreement is terminated under Section 11.3 or we terminate for cause pursuant to clause 11.2 (and subject to our other rights and remedies) (i) you shall not be entitled to a refund of any fees paid by you and (ii) you shall remain fully liable for any and all fees which are due and payable as at the date of termination and for any annual license fees which would have been due for the remainder of any committed Subscription Term, which amounts shall become immediately payable as at the date of termination. Upon termination of this Agreement, we may immediately disable your access to the Licensed Software and you shall immediately discontinue use of the Licensed Software and certify in writing to KX that such access has ceased.
11.7 Amendments to the Agreement. Except as otherwise specified, we may modify this Agreement from time-to-time and any modifications to this Agreement will take effect at the next Renewal Subscription Term and will automatically apply as of the renewal date unless you elect not to renew. You are required to check the terms of the Agreement as they apply at the commencement of each Renewal Subscription Term. Notwithstanding the foregoing, in some cases (e.g. to address compliance with laws, or as necessary for new features) we may specify that such modifications become effective during your then-current Subscription Term, in which case we will notify you of any such modifications. You acknowledge and agree that by continuing to use the Licensed Software from the date of any revision, you agree to be bound by the revised terms.
11.8 Surviving Provisions of Agreement. The provisions of section 5 (“Ownership of the Licensed Software”), section 7 (“Limited Warranty”), section 8 (“Indemnification”), section 9 (“Limitation of Liability and Damages”), section 10 (“Confidential Information”), section 11 (“Term and Termination”) and Section 12 (“Additional Provisions”) 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.
12.1 Assignment and Successors. The Agreement shall be binding and inure to the benefit of the Parties and their respective permitted successors (as notified to us) and assignees. Subject to the next sentence, you will not assign, transfer or novate any of your rights nor delegate any of your obligations under the Agreement to any third party without our express written consent. You may assign this Agreement to any of your Affiliates for the purposes of internal reorganisation or to a successor of your business in the event of a reorganization or merger or the sale of your business or all or substantially all of your assets to a third party conditioned upon such successor business not being a competitor of ours (determined by us in our reasonable discretion). We may assign, transfer or novate all or any our rights and obligations under the Agreement to any of our Affiliates for the purposes of internal reorganization or to any company to which we transfer all or a substantial part of our assets or business provided that the assignee, transferee or novatee undertakes to you to be bound by and perform our obligations under the Agreement. Any attempted assignment without required approvals will be null and void and of no legal effect. We may subcontract all or part of the Services to third parties or Affiliates (subcontractors) and/ or use Affiliates to perform the Services provided that we remain responsible for breaches of the Agreement caused by our subcontractors and Affiliates and subject to the Data Processing Agreement referred to at Section 12.5.
12.2 Third Party Software. You shall not use Third Party Software other than in accordance with the use rights that you have to the Licensed Software.
12.3 Compliance with Laws and Anti-Bribery. We will perform our obligations under this Agreement in compliance with any laws applicable to us, without regard to your specific use of the Licensed Software and Services. You will use the Licensed Software and Services 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.
12.4 Trade Control. You acknowledge that the Licensed 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 Licensed 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 Licensed 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 Licensed Software, is available at the following website: Export Statement – KX. Any dispute in relation to this Section 12.4 shall be governed in accordance with Section 12.7 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 Licensed Software, or perform support or services, due to an embargo, trade sanction or other comparable restrictive measure.
12.5 Data. Each Party agrees to comply with its applicable obligations under the Data Protection Laws in relation to its processing of Personal Data under this Agreement. You acknowledge that we or any of our Affiliates may process any Personal Data that is provided to us in connection with Software Support Services, in accordance with the privacy notice (as amended from time to time) that can be found or linked on the designated support portal or that may otherwise be provided to you by us from time to time. The Parties acknowledge that for the purposes of Data Protection Laws, we are a processor of the Personal Data that you make available to us in connection with the Managed Services and the Parties agree to comply with the terms of the Data Processing Agreement which is available at DPA and which is incorporated into this Agreement. Where you provide or make available to us any Personal Data in the context of the Services, you warrant that the Personal Data you provide to us or make available to us on your behalf has been collected and made available to us lawfully and may be used by us for the purposes of providing Services in compliance with Data Protection Laws. You shall not take any action that causes or is reasonably likely to cause us to breach Data Protection Laws. You acknowledge that any Personal Data you make available to us or to Microsoft Corporation as part of your access to the Licensed Software (e.g. email addresses and contact details) may be shared between us and Microsoft Corporation for the purposes of fulfilling our obligations under this Agreement. You agree not to provide or make available to us in the Licensed 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 in the context of receiving the Services or otherwise using the Licensed Software (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 Licensed Software or to make available to KX or any of its Affiliates any 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 HIPAA or any similar federal or state laws, rules or regulations.
12.6 General. This is the only Agreement between you and KX relating to your access to the Licensed Software via Microsoft Azure. The parties to this Agreement are independent contractors. Nothing contained herein or done pursuant to this Agreement shall constitute either Party being the agent or employee of the other Party for any purpose or constitute the parties as partners or joint venturers. Neither Party shall create or assume any obligation on behalf of the other Party for any purpose whatsoever, unless such other Party expressly agrees to such an obligation in writing. Notwithstanding the above, each Party agrees to act reasonably and in good faith in relation to its dealings with the other Party under this Agreement including in relation to the requirements regarding usage, audits and reporting. No person other than the Parties to the Agreement will have the right to enforce any term of the Agreement. This Agreement incorporates the Data Processing Agreement and any supplemental terms referenced herein, and (a) represents the entire agreement and understanding between the Parties with respect to the Licensed Software and the Services acquired hereunder; (b) supersedes any previous communications, representations or agreements between the Parties; and (c) prevails over any conflicting or additional terms in any quote, purchase order, acknowledgement, or similar communications between the Parties. By agreeing to subscribe for the Licensed Software, you agree that your use will be governed by this Agreement unless we have agreed separate terms with you in writing. Each Party acknowledges that in entering into this Agreement it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each Party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement. 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, to you or any third party. The failure or delay of either Party to insist upon strict performance of any provision of the Agreement, or to exercise any right or remedy to which it is entitled under or in connection with the Agreement shall not constitute a waiver thereof and no waiver of any breach of the Agreement shall operate as a waiver of any subsequent or continuing breach. Neither Party will be liable for any failure or delay in performing their obligations (other than obligations to pay) where such failure or delay results from any cause which is beyond that Party’s reasonable control including failure of utilities or the internet, fire, flood, earthquakes, collapse of buildings, explosion, acts of terrorism, acts of war, public health emergencies, governmental action, any law or any action taken by a government or public authority including imposing an export or import restriction, quota or prohibition that prevents or delays the provision of the Licensed Software or any of the Services. Dates or times by which each Party is required to render performance under the Agreement shall be postponed automatically to the extent and for so long that the Party is delayed or prevented from meeting them by such causes. We may terminate the Agreement on immediate written notice to you if we are not permitted to deliver Services or grant access to the Licensed Software due to an embargo, trade sanction or other comparable restrictive measure.
12.7 Governing Law. The Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of the State of New York, United States of America. Without prejudice to either Party’s right to seek injunctive relief (or any other provisional remedy) from any court having jurisdiction over the parties and the subject matter of the dispute as they consider necessary to protect their name, proprietary information, trade secrets, know-how, or any other Intellectual Property Rights, and without regard to the United Nations Convention on Contracts for the International Sale of Goods, all disputes arising out of or in relation to the Agreement (including non-contractual disputes or claims) shall be subject to the exclusive jurisdiction and venue of the New York state courts located in the County of New York, in the borough of Manhattan and in the federal courts located in the Southern District of New York. Each Party hereby waives any disputes it may have with respect to proper venue. If any provision or part-provision of the Agreement is found to be invalid, illegal or unenforceable by a court of competent jurisdiction, such provision or part-provision shall be severed from the remainder of the Agreement, which will remain in full force and effect to the maximum extent permitted by law, given the fundamental intentions of the Parties. If any provision or part-provision of the Agreement is deemed deleted under the foregoing sentence, the Parties will negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
12.8 Dispute. Except in the case of a Party seeking to exercise its right to injunctive relief or any other provisional remedy, or in the case of infringement or misappropriation of our Intellectual Property Rights or violation or disclosure of Confidential Information, in the event of a dispute between the Parties relating to the Agreement, the Party raising the matter in dispute will notify the other in writing describing in sufficient detail the nature of the dispute. Each Party will then appoint or nominate one or more senior representatives to resolve the dispute. At the end of 30 days, if no agreement has been reached between the Parties to resolve the dispute, either Party is free to initiate proceedings.
12.9 Commercial Computer Software. The Licensed Software and the Services (including all components) are commercial in nature and developed solely at private expense and are “Commercial Computer Software” and “Commercial Computer Software documentation.” In accordance with Section 12.212 of the Federal Acquisition Regulations (FAR) and Sections 227.7202-1 through 227.7202-4 and DFARS 252.227-7014(a)(1) of the Defense Federal Acquisition Regulation Supplement (DFARS), any use, duplication or disclosure of the Licensed Software or Services (including all components) by the U.S. Government or any of its agencies will be governed by and subject to all of the terms, conditions, restrictions, and limitations of the Agreement. Use of the Licensed Software and Services (including all components) is an agreement by the U.S. Government that the Licensed Software and Services (including all components) include “commercial computer software” and “commercial computer software documentation” and constitutes acceptance of the rights and restrictions in the Agreement.
12.10 Notices. All notices made pursuant to the Agreement must be made in writing. Any written notice to be given by you or made pursuant to the provisions of the Agreement shall be sent postage prepaid by registered or recorded mail or reputable courier service, addressed to us: Kx Systems, Inc, 45 Broadway, Floor 20 New York, NY 10006 USA with a copy by email to KXLegal@kx.com. Unless otherwise provided in the Agreement, all notices by you shall be deemed received five days from proof of delivery to our postal address. We will provide any required notice to you under this Agreement by sending the notice by email to the address that you provide to us for your account.
12.11 Equitable Relief. Each Party agrees that a breach or threatened breach by such Party of any of its obligations under Section 10 or, in the case of you only, any unauthorized use by you of the Licensed Software, would cause the other Party irreparable harm and significant damages for which there may be no adequate remedy under law and that, in the event of such breach or threatened breach, the other Party will have the right to seek immediate equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
Information Reported to KX The following is a non-exhaustive list of the Licensed Software variables which are reported (which are upon notice, subject to change):
We will provide the Software Support Services and Managed Services as set out in this Schedule during the Subscription Term in relation to the Licensed Software subject to compliance with the terms of the Agreement.
1. Definitions Applicable to the Managed Software Support Services
1.1 “Authorised Representatives” means senior members of your internal IT Support team who sign up directly to our Support Portal and are authorized by you to raise support tickets on your behalf. Where this information is not supplied, the “Authorised Representative” will be the person who accepted the Agreement upon registration and during the deployment of the Licensed Software.
1.2 “Business Days” means Monday to Friday, excluding public holidays, in London, New York, Singapore or Sydney, as determined by the region you selected for your deployment.
1.3 “Bug” is an error, flaw or fault in the design, development, or operation of the Licensed Software that causes it to produce an incorrect or unexpected result, or to behave in unintended ways. A bug includes both material and immaterial nonconformance of the Licensed Software to its functional specifications as described in the documentation. Failures resulting from the following are not bugs: (a) your negligence or improper use of the Licensed Software, or (b) your use of the Licensed Software in combination with any third party software not identified as compatible by us. The classification of a bug will be determined according to clause 4 below.
1.4 “Bug fix” means either a modification or addition that, when made or added to the Licensed Software, brings the Licensed Software into material conformity with its functional specifications, or a procedure or routine that, when observed in the regular operation of the Licensed Software, avoids the practical adverse effect of such nonconformity.
1.5 “Dependencies” means any third party software and web services required to be installed for the Licensed Software to operate, which are identified by us and notified to you.
1.6 “First Response” is defined in clause 4.5.
1.7 “Issue” means any incident that occurs on the Licensed Software, of any cause and any nature, and includes any problems you may have using the Licensed Software. Some Issues could be caused by Bugs, but there are many other causes of Issues that are not Bugs in the Licensed Software.
1.8 “Maintenance Period” means, with respect to the Licensed Software, a scheduled maintenance window that has been identified and, where reasonably practicable, mutually agreed between the Parties.
1.9 “Managed Services” means the post implementation support services provided by us to you as defined in clause 3 of this Schedule.
1.10 “Patch” means an update to part of the Licensed Software (being an urgent change required to be made before release of a new Version). Any and all “patches” will be included in the next Version.
1.11 “Response Period” is defined in clause 4.5.
1.12 “Software Support Services” means the services described in clause 2.
1.13 “Support Hours” are defined in the table set out in clause 4.2.
1.14 “Support Portal” means the portal made available for you to raise tickets for Issues and queries.
1.15 “S1”, “S2”, “S3” and “S4” have the meaning identified in clause 4.2.
1.16 “Ticket” refers to tickets created on our Service Management System, which you access via our Support Portal
1.17 “Update Frequency” is defined in clause 4.9.
1.18 “Version” means a version of the Licensed Software that is deployed in its entirety. A version may include Bug fixes and new or improved features and functionality.
2. Software Support Services
2.1 We will:
2.1.1 provide a Support Portal for all Issues, exclusively for Authorised Representatives to log Issues during applicable Support Hours. A telephone line will also be provided for when the Support Portal cannot be accessed;
2.1.2 use our reasonable endeavours to provide a First Response within the Response Period, and updates within the Update Frequencies, set out below (time not being of the essence);
2.1.3 provide you with periodic or interim updates to the documentation that we may issue from time to time.
2.2 We may, in our sole discretion, fix Bugs by Patch or by issuing a new Version. S4 bugs shall be resolved at our discretion;
3. Managed Services
3.1 We will perform the tasks reasonably required to maintain the operability of the Licensed Software.
3.2 We will regularly monitor the Licensed Software during Support Hours, to identify and react to abnormal conditions or behaviour, raise and track tickets for any identified Issues, and resolve Issues except those excluded as set out in clause 6.
3.3 We will record, classify, and attempt to diagnose and provide Bug fixes for Bugs identified as soon as reasonably practicable, escalating to higher levels of support as deemed necessary by us. We will contact your Authorised Representative(s) for further information if required by us after an Issue has been logged by us or by you and close the Issue upon resolution.
3.4 We will use reasonable commercial endeavours to test and impact assess all changes and upgrades, whether through deployment of Patches or new Versions, that we intend to make to the Licensed Software to ensure its continued operation for you.
3.5 We will provide deployment management for Patches and Versions required to fix Bugs, and to address identified security vulnerabilities. Any Patches and Versions we deem necessary in relation to the Licensed Software shall be deployed as required, with standard Version upgrades expected to be deployed on a quarterly basis. We will agree with you, where reasonably practical, a Maintenance Period within which such Patches and Versions shall be deployed.
3.6 We may identify emergency Issues that require a Patch or Version to be deployed to address a critical Bug. You shall act promptly to agree at short notice a period of time during which we can deploy such Patch or Version (an “Emergency Fix Period”).
3.7 If you decline to agree a Maintenance Period or Emergency Fix Period, then you accept that (a) our ongoing obligation to provide the Services to you shall be suspended without any liability whatsoever to you until such time as you make available a Maintenance Period in which Patches and Versions can be deployed, and (b) your use of the Licensed Software may be at risk of security vulnerabilities and degraded performance, for which we accept no liability. Any suspension of provision of Services by us shall not affect your obligation to pay any fees due under this Agreement.
3.8 We may inform you, whenever we become aware, of trends in your usage of the Licensed Software that may cause future Issues of the Licensed Software if you do not change your usage or deploy more infrastructure to cope with your changed usage.
4. Issue Definition and Severities
4.1 The table below defines the severity levels applied to tickets arising or reported by you or by us in the provision of the Software Support Services and Managed Services, with the Support Hours, Response Periods and Update Frequencies allocated to each such severity level. The severity of a ticket may change throughout its duration. For example, an S2 ticket may be upgraded to S1 if an Issue affecting some users spreads to make the Licensed Software unavailable to all users; or a S1 ticket could be downgraded to S2 if a workaround is provided in advance of fixing an Issue.
4.2 The severity level allocated to a ticket initially will be at our sole discretion. If you believe that events require the severity level to be altered, a request to change the severity level may be made to the Support Portal. The severity level allocated to a ticket is determined according to the following table:
|Criteria for Severity allocation
|Service provided for Enterprise Plus
|Critical Business Impact – your use of the Licensed Software is stopped or severely impacted which severely impacts your normal business operations
|24/7 x 365
|Initial Response Time Target
|Resolution Time Target
KX will use commercially reasonable efforts to reach the target.
|Significant Business Impact – your use of the Licensed Software is still possible but in a degraded or restricted capacity such that it is causing significant impact to portions of your business operations and productivity.
|24/7 x 365
|Initial Response Time Target
|Resolution Time Target
KX will use commercially reasonable efforts to reach the target.
|Minimal Business Impact – Product features are unavailable in the Licensed Software but a workaround exists and the majority of functions are still useable. Minor function/feature failure that you can easily circumvent or avoid. Your business operations have minor loss of operational functionality.
|9am-5pm business days
|Initial Response Time Target
|1 business day
|Resolution Time Target
KX will use commercially reasonable efforts to reach the target.
|Nominal Business Impact – Minor problem or question that does not affect the function of the Licensed Software such as How-To’s, documentation, general questions, or enhancement requests. There is no impact to the Licensed Software usage or your operations.
|9am-5pm business days
|Initial Response Time Target
|1 business day
|Resolution Time Target
|S4 bugs shall be resolved at our discretion. If resolved, they may be included in subsequent Versions.
4.3 All support tickets raised by you or by us shall be raised via the Support Portal and responses will be provided via that Support Portal, unless otherwise deemed necessary by us.
4.4 You must provide dedicated resources to provide information to us or make decisions based on our support 24 hours x 7 days on S1 Issues.
4.5 Response Period is the time permitted to respond to the ticket, will be defined per ticket and is dependent upon the severity level of the ticket, as determined in the table above. Where you raise a support ticket, the Response Period shall commence when a Support Portal ticket has been fully and properly logged by you with sufficient information for us to be able to make an initial determination of the severity level of the ticket. Our first response within the Response Period will consist of an acknowledgement on the Support Portal that the ticket has been raised and queued and shall provide an initial determination of the severity level of the ticket (“First Response”).
4.6 If we raise a support ticket, the First Response shall be when we log that ticket on the Support Portal with an initial determination of the severity level of the ticket.
4.7 If the initial call is received by phone, we will raise a ticket (with the same information) on the Support Portal, which shall constitute our First Response.
4.8 Any S3 or S4 tickets which are received outside of Support Hours shall be deemed received at the start of the next business day. In addition, target response times for S3 and S4 tickets only run during Support Hours. So, by way of example, if you raise a S3 ticket at 4pm on Friday, the response deadline shall be by 11am on Monday.
4.9 We will provide updates as to the status of our response to the ticket at the Update Frequencies set out in the table above (“Update Frequencies”). Update Frequencies shall commence from the time of our First Response.
4.10 If any ticket is determined to be related to excluded systems, or cause by excluded activity, as stated in clause 6, the ticket will be assigned Severity 4 and you will be notified. We will conduct no further work on the ticket, other than to close it.
5. Service Level Agreement
5.1 Our service level performance shall be measured per month and calculated as follows:
5.1.1 Service Level Performance = (A/B) * 100 where
A = equals the total number of Issues reported to us within the relevant month where the First Response time was less than or equal to the applicable Response Period (excluding any tickets for “excluded” issues)
B = equals the total number of Issues reported to us within the relevant month (excluding any tickets for “excluded” issues)
5.1.2 The Service Level Performance shall be met if it is equal to or greater than 95% (“Performance Standard”).
5.1.3 We will provide you with a monthly service report outlining our Service Level Performance for the immediately preceding month together with any supporting evidence reasonably requested by you to verify such report.
5.2 If the Service Level Performance falls below the Performance Standard, the parties will promptly undertake a performance review to determine how to improve the performance of the Managed Services and Software Support Services.
6.1 We will only be obliged to correspond with Authorised Representatives in respect of the supply of the Software Support Services and Managed Services. Authorised Representatives shall use reasonable endeavours to investigate and to resolve any Issues prior to contacting us.
6.2 The following are not included within the Software Support Services or Managed Services and shall be provided at our discretion and charged for additionally:
(a) Support of accessories, attachments, machines, systems or other devices other than the Licensed Software (including Microsoft Azure);
(b) Rectification of lost or corrupted data unless caused by us;
(c) Support rendered more difficult because of any changes, alterations, additions, modifications or variations to the Licensed Software or operating environment by anyone other than us;
(d) Attendance to Issues caused by your use of the Licensed Software outside the provisions laid down in the Agreement and documentation;
(e) Diagnosis and/or rectification of Issues not associated with the Licensed Software;
(f) Scripts and materials created or developed by you, code within user defined functions, any scripts and utilities written to integrate the Licensed Software into your environment and/or any third party systems, and any other customer-developed materials including, but not limited to, user created dashboards, custom reports and custom interfaces;
(g) Any assistance from us that is requested by you subsequent to your breach of this Schedule 2;
(h) Configuration of the Licensed Software beyond the initial deployment; and
(i) Development of new functionality, data feeds or dashboards within the Licensed Software.
6.3 We will not in any way be liable for delay or failure to provide Services where such failure or delay is due to Cloud Provider’s issues, nor do we provide support for any third-party system or environment.
7. Your Obligations
7.1 During the Subscription Term you will:
(a) make available to us free of charge all personnel, information, systems, facilities and services reasonably required by us to enable us to duplicate an Issue and perform maintenance of the Licensed Software including, without limitation, access to your Microsoft Azure subscription on which the Licensed Software is installed, machine details, core dumps, log files, screenshots, runbooks and sample data. Where remote access is not made available by you, this may have an impact on the speed of our response, recovery and remediation, to which reasonable adjustments shall be made. If our personnel are required at your premises to resolve any Issue, such personnel shall be chargeable to you at the agreed rate or, if no such rate is agreed, in accordance with our scale of standard rates in place from time to time.
(b) ensure that the Licensed Software is used in a proper manner by competent employees trained in the use of the Licensed Software or by persons under the supervision of such employees or by Authorised Representatives;
(c) not request, permit or authorise anyone other than us to provide the Software Support Services or Managed Services in respect of the Licensed Software;
(d) co-operate fully with our personnel in the diagnosis of any Issues in the Licensed Software and any Bugs in the Licensed Software or the documentation;
(e) ensure that you are using the version of the Dependencies recommended by us in the documentation or otherwise notified by us as being the optimal version of the Dependencies to be used for or in connection with the Licensed Software; and;
(f) not disable or restrict the monitoring, alerting and event grid functions. During any period any of these are disabled or restricted, our obligations to meet the SLAs and to provide Software Support Services and Managed Services will be suspended.
7.2 We are entitled to assume that any of your data which we have access to is backed up and we will not be liable to you or to any other Person for any loss arising out of any failure by you to keep full and up-to-date security copies of your data.
7.3 You are responsible for the definition, sourcing, connectivity, availability, quality, mapping, ingestion, manipulation, archive, deletion, analysis, display and export of all data, including all configuration of the Licensed Software to achieve this. You are responsible for the contracting and payments to third party providers of data.
7.4 You are responsible for the connectivity with your upstream or downstream systems or services.
7.5 You are responsible for managing access to the Licensed Software for all your users and systems, including creating, managing and deleting accounts, password resets and access control.
7.6 Vulnerability Detection Our vulnerability policies can be found here (as such page may be updated from time to time).
“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.
“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.
“Data Protection Laws” means:
(a) to the extent the UK data protection law applies, all applicable data protection and privacy legislation in force from time to time in the UK including the retained EU law version of the General Data Protection Regulation ((EU) 2016/679) (“UK GDPR”) as defined in the Data Protection Act 2018 (“DPA 2018”); the DPA 2018 (and regulations made thereunder) and the EU Privacy & Electronic Communications Directive 2002/58/EC as amended;
(b) to the extent the General Data Protection Regulation ((EU) 2016/679) (“GDPR”) applies, the GDPR as it has effect in EU law, the law of the European Union or any member state of the European Union to which KX is subject, which relates to the protection of personal data.
(c) and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of Personal Data.
“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.
“HIPAA” means the Health Insurance Portability and Accountability Act, as amended and supplemented
“HIPAA Data” means any patient, medical or other protected health information regulated by HIPAA or any similar federal or state laws, rules or regulations..
“Infringement Claim” third party claims, suits and/or proceedings brought against you or a Permitted User alleging that your use of the Licensed Software as permitted under the Agreement infringes any Intellectual Property Rights of a third party.
“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.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“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.
“Personal Data”, “special categories of data”, “process/processing”, “Controller”, “Processor”, “Data Subject” and “supervisory authority” shall have the same meaning as in the Data Protection Laws.
“Third Party Software” means third party software or third party open source software or components which are included with the Licensed Software and identified in the documentation or provided during the performance of the Services, as applicable.