CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS. BY CLICKING “I ACCEPT” OR BY ACCESSING OR OTHERWISE USING THE KX INSIGHTS™ PLATFORM 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 KX INSIGHTS™ PLATFORM 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.

YOU MAY NOT ACCESS THE KX INSIGHTS™ PLATFORM 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; (V) YOU ARE A PERSONAL, INDIVIDUAL, OR ACADEMIC USER.

IF YOU HAVE AN EXISITING CONTRACT FOR ACCESS TO THE KX INSIGHTS™ PLATFORM, THIS AGREEMENT WILL APPLY TO DEPLOYMENT ON THE MICROSOFT AZURE MARKETPLACE ONLY AND SHALL NOT VARY OR OTHERWISE AFFECT THE TERMS OF SUCH EXISTING ACCESS.

Private Preview. We may offer KX Insights™ Platform to you at no charge for reasonable amounts of usage, including free accounts and trial use (collectively, “Private Preview Products”) solely for internal evaluation. Your use of Private Preview 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 Private Preview (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 Private Preview period. Except as otherwise set forth in this section, the terms and conditions of this Agreement, fully apply to Private Preview Products. We may modify or terminate your right to use Private Preview Products at any time and for any reason in our sole discretion, without liability to you. You understand that any Private Preview Products, and any pre-release and beta features within KXI Insights Platform, that we make available are still under development, may be inoperable or incomplete and are likely to contain more errors and bugs than generally available. The Private Preview Products are provided “as is”. We make no promises that any Private Preview Products will ever be made generally available.  All information regarding the characteristics, features or performance of any Private Preview Products constitutes our Confidential Information. To the maximum extent permitted by applicable law, with respect to Private Preview 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 PRIVATE PREVIEW PRODUCTS WILL BE US$100.

 

1. SCOPE OF AGREEMENT

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 KX Insights™ Platform, any documentation relating thereto, which may be made available to you at code.kx.com (together “KXI”) and the managed services and software support services (“Services”) as set out in Schedule 2. Definitions are set out in Schedule 4. KX and User are each a “Party” and together the “Parties”.

 

1.2. KX Insights™ Platform 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 KXI 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 KXI and receipt of the Services as specified in this Agreement. Subject to your payment of specified fees, you will have access to KXI to be used strictly by you within the Microsoft Azure environment. Notwithstanding the use of KXI via Microsoft Azure, we remain the owners of KXI at all times.

 

2. FEES AND PAYMENT

2.1. Except as otherwise provided in the Agreement, all payments made under this Agreement are non-refundable and your access and use of KXI is non-cancellable. Your use of KXI and the fees therefor are subject to the Usage Policy as specified in Schedule 3.

 

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 a monthly basis 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 fees payable under this Agreement (i) at the beginning of each Renewal Subscription Term (defined in clause 11.1 below), and (ii) at any time in the event that Microsoft Corporation increases the fees that it charges to us in order for us to provide you with access to KXI and the Services.

 

2.3. Failure to Pay Fees. Without prejudice to our other rights, we may suspend your license to use and access KXI and/or the Services if you become more than thirty (30) days delinquent on any payments under this Agreement. We may suspend or terminate the Agreement immediately on notice.  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.  Your fees under this Agreement exclude any taxes or duties payable in respect of KXI. To the extent that any such taxes or duties are payable by us, you must pay to us (or Microsoft as our agent) the amount of such taxes or duties in addition to any fees owed under this Agreement. Notwithstanding the foregoing, if you have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed, you may provide us (or Microsoft as our agent) with such exemption information, and we will use reasonable efforts to provide you with invoicing documents designed to enable you to obtain a refund or credit from the relevant revenue authority, if such a refund or credit is available. 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 KXI.  You shall remain liable to us for any taxes that may be payable in respect of any use of KXI by your Permitted Users in accordance with section 3.2.

 

2.5. Withholding Taxes. You will pay all fees net of any applicable withholding taxes. You and we will work together to avoid any withholding tax if exemptions, or a reduced treaty withholding rate, are available. If we qualify for a tax exemption, or a reduced treaty withholding rate, we will provide you with reasonable documentary proof. You will provide us and Microsoft reasonable evidence that you have paid the relevant authority for the sum withheld or deducted.

 

2.6. 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 lesser of (i) a rate of 4% per annum above Bank of America’s then-current base rate, and (ii) the maximum amount allowable under applicable law.  This interest accrues on a daily basis until actual payment of the overdue amount.

 

2.7. Set Off. You will not withhold, reduce or set-off any amounts owed to KX under this Agreement.

 

3. PERMITTED USE

3.1. Provision of Access. Subject to (i) your payment of all fees due to KXI and (ii) your strict compliance 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, to access and use KXI via Microsoft Azure only and solely for your internal (a) business operations and (b) development and testing of KXI. 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 KXI 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 KXI 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 KXI 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 KXI will be no greater than your rights, and the obligations of your Permitted Users with respect to the use of KXI 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. KXI 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 KXI could lead to severe physical or environmental damages (“High Risk Activities”). You will not use KXI for High-Risk Activities.

 

4. RESTRICTIONS ON KXI USE

4.1. Usage Restrictions. You agree that, except as specified in Section 3.2, (i) your access to KXI 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 KXI on your behalf; (ii) you shall not transfer, sell, copy, frame, mirror, sublicense, assign, publish, rent, loan or use KXI on a service bureau basis, distribute or otherwise deal in KXI 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 KXI 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 or otherwise reduce to human-perceivable form all or any part of KXI, or attempt to gain access to the source code of KXI or any part thereof; (ii) alter, modify, create any derivative works or improvements of KXI 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 KXI, including any copy thereof; (iv) use KXI 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 KXI or restrictions in the documentation; (vi) combine or link KXI with any Copyleft Materials ; or (vii) use KX 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 causes damage or injury to any Person or property 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 KXI or Azure that you become aware of. You must promptly permit us to install the latest releases, Patches or Versions of KXI 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. KXI does not, on being made available to you, to our reasonable belief having taken commercially reasonable steps to verify, contain any Malicious Code and we will take commercially reasonable steps to ensure that we do not introduce Malicious Code into KXI.

 

4.4. Malicious Code. In addition to the foregoing, you shall not and shall not permit another Person to use KXI to access, store, process, distribute or transmit any Malicious Code.

 

4.5. Breach of Restrictions. KX reserves the right, without liability or prejudice to its other rights to you, to disable your access to KXI (including by requesting suspension of access to your Microsoft Azure environment through Microsoft Corporation) in the event of any breach of the provisions of Sections 4.1 or 4.2, for any failure to pay any fees due, or for any suspected or actual material breach of this Agreement. You agree that KX shall have no liability of any kind in any circumstances to you or a third party if KX is required to disable your access and you will indemnify KX for any third party claim it suffers due to any breach by you of Section 4.1 or 4.2.

 

5. ACCESS AND REPORTING

5.1. Access. Upon successful registration in accordance with our then-current registration procedures, you will be provided with access to KXI in Microsoft Azure only. Such access will continue unless (i) you delay or are delinquent in the payment of fees to Microsoft as agent for KX (ii) the Agreement is terminated or your access is suspended in accordance with the terms of the Agreement or (iii) you fail to maintain your subscription with Cloud Provider for Microsoft Azure.

 

5.2. Reporting to KXI. 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 KXI, we may, without prejudice to any other rights or remedies, suspend or terminate your access to KXI.

 

5.3. Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, KX may monitor your use of KXI 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 KXI 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 KXI. 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 KXI, we will provide you with the Services as detailed in Schedule 2 to this Agreement.

 

5.5. Audit. You agree to participate in any audit that we may request related to your usage of KXI and compliance with the terms of this Agreement and the applicable usage restrictions set forth in Schedule 3. This means that you must promptly provide any information and documents that we, Microsoft or that an independent auditor, may reasonably request. You must, upon prior notice to you, permit us or our appointed representative to audit your records and usage of KXI at your premises (and at the premises of or via virtual access to your hosting provider) during normal business hours.

 

6. OWNERSHIP OF KXI

6.1. You acknowledge and agree that KX owns all right, title and interest in KXI and any Feedback and any Intellectual Property (whether registerable or unregisterable) appurtenant thereto including in any, modifications, new Versions, releases, Patches, improvements, or developments to KXI arising during this Agreement. To the extent that any of the foregoing rights vests in you, such rights are hereby automatically assigned by you to KX.

 

6.2. Your permission to use such Intellectual Property rights is authorized only for the purposes set forth herein and upon termination of this Agreement for any reason, such authorization will automatically cease. You agree and acknowledge that KXI is proprietary and contains confidential and valuable trade secrets of KX, which you agree to safeguard as provided for under Section 10, Confidential Information, below.

 

6.3. For the avoidance of doubt, you disclaim all right, title and interest in KXI (whether in whole or in part), regardless of whether KXI is embedded in an application or program developed by you. 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.” Such moral rights (including if KXI is embedded in an application or program developed by you) shall vest in and be owned by KX absolutely pursuant to Section 6.1 of this Agreement. You shall not apply for or register any patents, trademarks, trade names, inventions, copyrights, know-how or trade secrets relating to the design, manufacture and operation of any application or program if any such product or application in any manner utilizes KXI or if any such application or registration includes any reference to or any aspect of KXI (whether in whole or in part) or any KX Confidential Information.

 

7. LIMITED WARRANTY

7.1. Limited Warranty. We warrant to you only, and not to any third party (including your Affiliates), that KXI will perform substantially in accordance with the then-current documentation for KXI (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 KXI pursuant to this Agreement (“Warranty Period”). We do not warrant and we disclaim any implied warranty that the operation of KXI will be error free or uninterrupted or that KXI will achieve any intended result or that it will be compatible, work with or continue to work with third party software or hardware.

 

7.2. Remedy. If during the Warranty Period KXI does not perform as warranted in Section 7.1 above, we will undertake to correct or replace KXI or, if correction or replacement of KXI 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. Compliance with Laws. We warrant that we will provide KXI and Services to you in compliance with any laws applicable to us generally, without regard to your specific use of KXI and Services.  You warrant that you will use KXI and Services in compliance with all applicable laws. We do not warrant and we disclaim any implied warranty that the operation of KXI will be error free or uninterrupted or that KXI will achieve any intended result or that it will be compatible, work with or continue to work with third party software or hardware.

 

7.4. Other than the warranties expressly stated above or documented elsewhere in the Agreement, no express or implied warranties shall apply to KXI, 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. INDEMNIFICATION

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 finally awarded against you (including your reasonable attorney’s fees) in respect of the Infringement Claim. Our liability and obligation under this indemnity is conditional on the following:  if any third party makes a claim, or notifies an intention to make a claim, against you which may reasonably be considered likely to give rise to an Infringement Claim, you will: (i) as soon as reasonably practicable, give us written notice of the Infringement Claim, specifying the nature of the Infringement Claim in reasonable detail; (ii) not make any admission of liability, agreement, settlement or compromise in relation to the Infringement Claim without our prior written consent or otherwise prejudice our defence of such Infringement Claim; (iii) give us and our professional advisers reasonable access (on reasonable prior notice) to your premises, personnel and records as required for us to assess and defend the Infringement Claim; and (iv) give us sole control over and authority to avoid, dispute, settle or defend such Infringement Claim; provided that we will not settle any such Infringement Claim without your prior written consent (not to be unreasonably withheld or delayed) unless the settlement unconditionally releases you from further liability, and does not place undue restrictions on your business, products or services.

 

8.2. KX Options. If any third party makes, or notifies an intention to make, a claim against you which may reasonably be considered likely to give rise to an Infringement Claim, or we reasonably conclude that KXI may be liable to an Infringement Claim, we may, at our own expense and option: (i) procure for you the right to continue to use KXI; or (ii) replace (within a reasonable period of time) the infringing components of KXI with other components with the same or similar functionality that are, in all material respects, acceptable to you (acting reasonably); or (iii) suitably modify KXI (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 KXI. 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 KXI with any other software or hardware products; (ii) connections  or integrations of the KXI with any of your products or any of your components, whether enabled through APIs, third party software or Dependencies or otherwise; (iii) modifications to KXI made by any Person other than us or which are not made under our direction; (iv) use of an unsupported Version of KXI pursuant to Schedule 2 or 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; (vi) infringements arising from your negligence or wilful infringement, or (vii) any use of KXI outside of the Microsoft Azure environment.

 

8.4. By You. You agree to indemnify and hold us harmless against any loss, liability, claim, damage, fine, cost or expense (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) use of KXI or Services in violation of the Agreement, any applicable law or regulation, or any third party rights; (ii) any decision made or action taken by you or any other Person on the basis of KXI or product or works produced using KXI and not caused by any fault or error with KXI; (iii) the combination of KXI with other software, systems, applications or hardware which infringes or misappropriates any third party’s Intellectual Property Rights, (iv) suits or actions arising as a result of your violation of any Cloud Provider terms, including to the extent that you use or attempt to use KXI outside of the Microsoft Azure environment and which causes us to violate any Cloud Provider terms; (v) our use of any third party software licenses, or services that you require us to use in order to provide you with access to KXI and/or the Services; and (vi) your use of KXI to process categories of data specified in Section 12.5 as being prohibited.

 

8.5. Reduction in Indemnification. The indemnifying Party’s liability to indemnify shall be reduced to the extent that such claims, suits or actions are subject to the indemnitee’s obligations to indemnify in the Agreement.

 

8.6. Mitigation. Each Party will use reasonable endeavours to avoid or mitigate any loss it may suffer or incur as a result of an event that may give rise to a claim under this Section 8.

 

9. LIMITATION OF LIABILITY AND DAMAGES

9.1. UNLIMITED LIABILITY. NEITHER PARTY WILL EXCLUDE OR LIMIT ITS LIABILITY RESULTING FROM: (A) THAT PARTY’S INDEMNIFICATION OBLIGATIONS SET OUT IN THE AGREEMENT; (B) FRAUD OR FRAUDULENT MISREPRESENTATION BY THAT PARTY; (C) DEATH OR PERSONAL INJURY ARISING FROM THAT PARTY’S NEGLIGENCE OR WILFUL MISCONDUCT; (D) ANY FAILURE BY YOU TO PAY ANY FEES DUE UNDER THE AGREEMENT (OR AS WOULD HAVE BECOME DUE, BUT FOR ITS EARLIER TERMINATION); (E) YOUR REPRODUCTION, USE OR DISTRIBUTION OF KXI OR SERVICES OUTSIDE THE SCOPE OF THE LICENSES GRANTED IN THE AGREEMENT; OR (F)  ANY OTHER LIABILITY TO THE EXTENT THAT THE SAME MAY NOT BE EXCLUDED OR LIMITED AS A MATTER OF APPLICABLE LAW.

 

9.2. EXCLUSION OF DAMAGES. Subject to Section 9.1, in no event will either Party be liable for loss of use, corruption of software, loss or damage to or corruption of data or failure to store any data, system incompatibility, failure to accurately transfer, read, or transmit information, loss of or damage to goodwill, interruption of business, loss of profits, loss of sales or revenue, loss of anticipated savings, loss associated with any transaction using KXI, 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), 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. LIABILTY 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 THE 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 NOT EXCEED 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.

 

9.4. Concurrent Claims. You will not bring concurrent claims for multiple recovery under separate agreements with KX or any of our Affiliates, if the subject matter of the claim is subject to the same loss or a loss arising from the same incident.

 

9.5. Entire Financial Liability. FOR THE AVOIDANCE OF DOUBT THIS SECTION 9 SETS OUT THE ENTIRE LIABILITY OF EACH PARTY AND THEIR RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND REPRESENTATIVES AND THEIR SUCCESSORS AND ASSIGNS UNDER OR IN CONNECTION WITH THIS AGREEMENT.

 

10. CONFIDENTIAL INFORMATION

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 KXI including any Intellectual Property Rights appurtenant thereto 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 thereafter, it will treat as confidential all Confidential Information of the other Party, provided however with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law) such obligations of non-disclosure will survive the termination or expiration of this Agreement for so long as such Confidential Information remains subject to trade secret protection under applicable law. Each Party will not use such Confidential Information except to exercise or enforce its rights or perform its obligations hereunder or as 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 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, and the Party disclosing the information to such third party shall remain responsible for such third party’s compliance with those confidentiality obligations. 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.

 

10.3. EXCEPTIONS. The foregoing restrictions will not apply to information that (i) is known to the receiving Party at the time of communication to the receiving Party, (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, (iv) has been independently developed by the receiving Party, (v) has been approved for release by written authorization of the communicating Party, (vi) is required by law to be disclosed; or (vii) 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; provided that if a Party is required to disclose the other Party’s Confidential Information pursuant to an order under law, the disclosing Party shall give the Party owning the Confidential Information sufficient notice of such disclosure to allow the owning Party reasonable opportunity to object to and take necessary legal action to prevent such disclosure.

 

10.4. KXI PERFORMANCE. You shall not distribute or otherwise make available to any third party any report regarding the performance of KXI or any report which contains a competitive analysis, KXI benchmarks or any information from such a report, except as explicitly authorized by KX in writing.

 

11. TERM AND TERMINATION

11.1. Subscription Term. “Subscription Term” means an initial period of 12 months starting on the day upon which you have access to KXI (after conclusion of any Private Preview 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, (iii) the other Party makes an assignment for the benefit of its creditors, (iv) if there are instituted against the other Party proceedings in bankruptcy, reorganization, receivership or dissolution and such proceeding is not stayed or dismissed within sixty (60) days; or (v) if there are instituted by the other Party proceedings in bankruptcy, reorganization, receivership or dissolution.

 

11.3. KX Termination. KX may terminate this Agreement at any time on giving you notice in writing if your use of KXI is contrary to the terms of this Agreement. This Agreement will automatically terminate if your Azure subscription is terminated. Termination of this Agreement by KX for either of the foregoing shall in no way relieve you from your obligation to pay any sums accrued or due prior to the date of such termination, including any amounts payable to KX for the remainder of your Subscription Term.

 

11.4. Termination by Microsoft. You acknowledge that Microsoft Corporation has the right to terminate your access to KXI 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 and we shall have no liability to you in the event of such termination.  You shall remain liable to pay for your license of KXI and the Services and for any usage-based fees up until the point of termination.

 

11.5. Effect of Termination. Upon termination of this Agreement, we may immediately disable your access to KXI and you shall immediately discontinue use of KXI and certify in writing to KX that such access has ceased.

 

11.6. 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 KXI from the date of any revision, you agree to be bound by the revised terms.

 

11.7. Surviving Provisions of Agreement. The provisions of section 5 (“Ownership of KXI”), 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. ADDITIONAL PROVISIONS

12.1 Assignment and Successors. You may not assign or transfer any of the rights nor delegate any of the obligations under this Agreement to any third party without the express written consent of KX. This prohibition extends to any company reorganization or merger or the sale of your business or its assets to a third party.

 

12.2. Third Party Software. We have the right to license KXI to you in compliance with the licenses of any Third Party Software contained in KXI. Third Party Software will at all times be owned by the applicable third party and will be subject to any applicable third party license terms. You agree to comply with such licenses and that such licenses will apply in lieu of the terms of the Agreement with respect to such Third Party Software, including any provisions governing access to source code, modification or reverse engineering.

 

12.3. Anti-Bribery. You shall 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. Export. The following section 12.4 applies to KXI and to any software, APIs, applications and/or connectors which are provided by KX to you in order to enable or facilitate your use of KXI, including without limitation PyKX and Kodbc.You acknowledge that KXI is subject to US export control and economic sanctions laws and regulations and to import laws, regulations and requirements of certain foreign governments (“Trade Control Laws”). You agree to fully comply with those Trade Control Laws in connection with KXI including where applicable assisting in obtaining any necessary governmental approvals, licenses and undertakings. Without prejudice to the generality of this section 12.4, you will not, and will not allow any third-party, to use, export, re-export or transfer, directly or indirectly, of any part of KXI in violation of any Trade Control Laws. A listing of U.S. Export Control Classification Numbers and U.S. license exceptions, to the extent applicable to KXI, is available at the following website: Export Statement – KX.  You represent and warrant that you shall ensure (i) KXI will not be used for any purposes associated with chemical, biological or nuclear weapons or missiles or unmanned aerial vehicles capable of delivering such weapons, nuclear explosive activity or unsafeguarded nuclear fuel cycle, or any military-intelligence activity nor will it be resold (if reselling or sublicensing is permitted under the Agreement) if you know or suspect that it is intended or likely to be used for such a purpose; and (ii) KXI will not be used, exported, re-exported or otherwise re-sold or transferred to a destination subject to US, UN, EU, UK or OSCE embargo where that act would be in breach of the terms of that embargo (including but not limited to the Crimea region of Ukraine, Cuba, Iran, North Korea and Syria) (“Embargoed Countries”); and (iii) KXI will not be used, exported, re-exported or otherwise re-sold or transferred to any Person (a) listed on any U.S. or applicable U.S. sanctions or export-related restricted or prohibited party list, including but not limited to the Specially Designated Nationals and Blocked Persons List maintained by the U.S. Department of the Treasury, the UN Security Council Consolidated List, and the EU Consolidated List, and the UK Office of Financial Sanctions Implementation’s Consolidated Financial Sanctions List; (b) any Person that is, in the aggregate, 50% or greater owned, directly or indirectly, or otherwise controlled by Persons described in (a); (c) the Entity, Denied Persons and Unverified Lists maintained by the U.S. Department of Commerce; or (d) any Person that is legally organized in, having a principal place of business in, or ordinarily resident in an Embargoed Country.  Any dispute in relation to this section 12.4 shall be governed in accordance with section 12.6 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 KXI, 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.  You agree not to provide or make available to us in KXI 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 KXI (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). 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 KXI may be shared between us and Microsoft Corporation for the purposes of fulfilling our obligations under this Agreement.

 

12.6. General. This is the only Agreement between you and KX relating to your access to KXI 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. The parties to this Agreement do not intend that any term of this Agreement will be enforceable by any third party or Person who is not a Party to this 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 KXI 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.  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 waiver by either Party of a breach or right under this Agreement will not constitute a waiver of any other or subsequent breach or right. Except with respect to payment obligations, non-performance of either Party shall be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts, order or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the control and not caused by the negligence of the non-performing Party.

 

12.7. Governing Law. 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. 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). You hereby waive 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 you of the provisions of sections 3, 4 or 5 and/or payment obligations relating to this Agreement, or for actions for injunctive relief to protect KX Confidential Information and Intellectual Property, 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.

 

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. Federal Government End Use Provisions. You agree that KXI is “commercial computer software” and/or “commercial computer software documentation” pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable, and any use, modification, reproduction, release, performance, display, or disclosure of KXI by a U.S. government agency shall be prohibited except as expressly permitted by this Agreement, which terms shall govern.

 

12.10. Third Party Dependencies. You accept and agree that KXI may require you to have third party software and web services installed for KXI to operate which may be identified by us in the documentation as “Dependencies”. Such Dependencies are made available by third parties and are subject to terms and conditions between you and those third parties. Dependencies licensed by you are not part of KXI and this Agreement does not apply to them (regardless if we recommend or reference such software in our documentation or if we facilitate the delivery to you). You will ensure that you are using the version of the Dependencies recommended by us in the documentation or otherwise noted by us as being the optimal version of the Dependencies to be used for or in connection with KXI. Under no circumstances, shall we be liable for any Dependencies operated or used by you or any failure by you to install or use the recommended version of the Dependencies.

 

12.11. 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 [email protected]. 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. 

 

 

SCHEDULE 1 – INFORMATION REPORTED

Information Reported to KX The following is a non-exhaustive list of KXI variables which are reported (which are upon notice, subject to change):

 

UTC timestamp (.z.p)
IP address (.z.a)
hostname (.z.h)
OS version (.z.o)
process ID (.z.i)
user ID (.z.u)
kdb+ version (.z.K/.z.k)
number of slave tasks (\s)
port number (\p)
license (.z.l)
cpu mask as in sched_getaffinity(2)
cpu usage as in getrusage(2)
installed RAM (.Q.w[]`mphy)
boot ID (/proc/sys/kernel/random/boot_id)

insights.ingest.bytes

insights.md.bytes

 

 

SCHEDULE 2 –SERVICES

We will provide the Software Support Services and Managed Services as set out in this Schedule during the Subscription Term in relation to KXI 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 designated by you to us in writing. Where this information is not supplied, the “Authorised Representative” will be the person who accepted the Agreement upon registration and during the deployment of KXI.

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 KXI 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 KXI to its functional specifications as described in the documentation. Failures resulting from the following are not bugs: (a) your negligence or improper use of KXI, or (b) your use of KXI 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 KXI, brings KXI into material conformity with its functional specifications, or a procedure or routine that, when observed in the regular operation of KXI, avoids the practical adverse effect of such nonconformity.

1.5. “First Response” is defined in clause 4.5.

1.6. “Issue” means any incident that occurs on KXI, of any cause and any nature, and includes any problems you may have using KXI. Some Issues could be caused by Bugs, but there are many other causes of Issues that are not Bugs in KXI.

1.7. “Maintenance Period” means, with respect to KXI, a scheduled maintenance window that has been identified and, where reasonably practicable, mutually agreed between the Parties.

1.8. “Managed Services” means the post implementation support services provided by us to you as defined in clause 3 of this Schedule.

1.9. “Patch” means an update to part of KXI (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.

1.10. “Response Period” is defined in clause 4.4.

1.11. “Software Support Services” means the services described in clause 2.

1.12. “Support Hours” are defined in the table set out in clause 4.2.

1.13. “Support Portal” means the portal made available for you to raise tickets for Issues and queries.

1.14. “S1”, “S2”, “S3” and “S4” have the meaning identified in clause 4.2.

1.15. “Ticket” refers to tickets created on our Service Management System, which you access via our Support Portal

1.16. “Update Frequency” is defined in clause 4.8.

1.17. “Version” means a version of KXI 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 (“Service Desk”) 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 KXI.

3.2. We will regularly monitor KXI 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 KXI 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 KXI 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 KXI 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 KXI that may cause future Issues of KXI 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 KXI 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 Service Desk. The severity level allocated to a ticket is determined according to the following table:

 

 

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 acknowledgment 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. Exclusions

 

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 KXI (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 KXI or operating environment by anyone other than us;

(d) Attendance to Issues caused by your use of KXI outside the provisions laid down in the Agreement and documentation;

(e) Diagnosis and/or rectification of Issues not associated with KXI;

(f) Scripts and materials created or developed by you, code within user defined functions, any scripts and utilities written to integrate KXI 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 KXI beyond the initial deployment; and

(i) Development of new functionality, data feeds or dashboards within KXI.

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 KXI including, without limitation, access to your Microsoft Azure subscription on which KXI 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 KXI is used in a proper manner by competent employees trained in the use of KXI 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 KXI; and

(d) co-operate fully with our personnel in the diagnosis of any Issues in KXI and any Bugs in KXI or the documentation.

(e) 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 KXI 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 KXI for all your users and systems, including creating, managing and deleting accounts, password resets and access control.

 

SCHEDULE 3– KXI USAGE POLICY

 

1. Usage Reporting Terms

We will use automatic usage logging within Microsoft Azure and KXI to automatically generate usage reports of system size RAM measured in Gigabytes (GiB) (“RAM Capacity”) and also the volume, in Gigabytes (GiB), of uncompressed data which is ingested and persisted to KXI (“Data Ingest & Stored”).

You will provide us with any other information and technical reports reasonably requested by us to verify the automatically generated usage report (such as third party public cloud infrastructure billing statements and/or tooling developed to assist you in estimating your usage).

We will provide you with a copy of such usage reports on a monthly basis commencing on the date you are given access to KXI and the usage report will be deemed accepted by you if you do not dispute it, with reasonable grounds and supporting evidence, within a period of 14 days from delivery to you of such usage report.

 

2. KX Calculations

We will calculate the average Peak RAM Capacity and the Daily Data Ingest on each day over the relevant month covered by the usage report (“Report Period”) as follows:

• Average Daily Peak RAM Capacity (across all nodes) shall be calculated by taking the average of the five (5) peak daily rates of RAM Capacity during the Report Period; and
• Data Ingest & Stored shall be calculated as the aggregate of the Data Ingest & Stored during the Report Period.

 

3. KX Insights™ Usage Review Policy

We shall review the usage reports for each Report Period each month. In the event that those usage reports reveal that the Daily Peak RAM Capacity and/or Data Ingest & Stored have exceeded the level for which you are licensed for two (2) consecutive months, we will notify you and present the following options:

(i) Option 1: Do not increase committed license amounts and remediate to the level of RAM Capacity and Data Ingest &Stored for which you are licensed. You must confirm in writing to us that this has been done; or

 

(ii) Option 2: purchase additional levels of RAM Capacity and/or Data Ingest & Stored (as applicable) by way of an additional order (that shall be effective from the end of the relevant report period (i.e. the second consecutive month where you have exceeded) and for the remainder of the Subscription Term).

If you choose Option 1, but then in any subsequent Report Period your usage exceeds the usage metrics for which you are licensed, an automatic charge will apply pro-rated based on the level of the excess usage and for the remainder of the Subscription Term.

By way of an example, Customer X is 30% above licensed amount for RAM capacity and Data Ingest & Stored in Month 2 and 3. KX notifies Customer X of this and the above options. Customer X chooses not to increase the subscription. Subsequently in month 5, excess usage occurs and the customer will be charged 30% of an additional fee pro-rated from the period of the excess usage to the remainder of the term (month 5 to 12).

 

SCHEDULE 4 – DEFINITIONS

 

“Affiliate(s)” means with respect to any given Person, a Person that directly or indirectly Controls, is Controlled by, or is under common Control with the given Person.  “Control” means, when used with respect to any Person, the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise, and the terms “Controlling” and “Controlled” have meanings correlative to this.

 

“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.

 

“Dependencies” means the dependencies that we, when providing services, have upon you or those acting on your behalf and those Dependencies identified in Section 12.10 of the Agreement.

 

“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.

 

“Infringement Claim” third party claims, suits and/or proceedings brought against you alleging that your use of KXI 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 open source software or components which are included with KXI and identified in the documentation or provided during the performance of the Services, as applicable.