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Version Number: 1.0
Date Last Revised: 1 June 2023
BY CLICKING “I ACCEPT” OR BY ACCESSING OR OTHERWISE USING THE SOFTWARE WHICH YOU ARE LICENSING VIA THE RELEVANT PLAN/SELECTION ON THE CLOUD PROVIDER’S MARKETPLACE (“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, COUNTRY LOCATION WHERE LICENSED SOFTWARE WILL BE DEPLOYED, AND ORGANISATION DETAILS, 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 the cloud services and infrastructure on which the Licensed Software is installed and which are payable directly by you to the relevant Cloud Provider (defined below) 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. 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. 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 the Licensed Software, any documentation relating thereto, which may be made available to you at code.kx.com (together “the Licensed Software”) and the 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 The Licensed Software is made available to you via the relevant cloud service provider’s marketplace from which you purchased your license to use the Licensed Software (“Marketplace”) and available to run on such cloud service provider’s environment (“Cloud Provider”). The Marketplace and Cloud Provider’s environment are owned and controlled by Cloud Provider. 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 Cloud Provider.
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 Cloud Provider environment. Notwithstanding the use of the Licensed Software via Cloud Provider’s environment, we remain the owners of the Licensed Software at all times.
2. FEES AND PAYMENT
2.1 Except as otherwise provided in the Agreement (and subject to the relevant Cloud Provider’s refund policies in place from time to time) all payments made under this Agreement are non-refundable and your access and use of the Licensed Software is non-cancellable. Your use of the Licensed Software and the fees therefore are subject to the Usage Policy as specified on the offer / plan / 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. Upon KX’s request, you shall grant us 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 Cloud Provider (or its nominated recipient). Cloud Provider 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 Cloud Provider 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 Cloud Provider 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 Cloud Provider 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 1.5% per month 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 under this Agreement.
3. PERMITTED USE
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 Cloud Provider’s environment 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 12.3 below).
3.2Usage 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 to 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. RESTRICTIONS ON THE LICENSED SOFTWARE USE.
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) send or store Malicious Code; (v) use or permit others to use the Licensed Software in violation of applicable law; (vi) transmit or generate any content or data that is unlawful or infringes any Intellectual Property Rights or use the Licensed Software for any unlawful purpose; (vii) work around any technical limitations in the Licensed Software or restrictions in the documentation; (viii) use Third Party Software other than in accordance with the use rights that you have to the Licensed Software (except to the extent the terms of open source licenses applicable to Third Party Software prohibit any of the restrictions in this Agreement, in which event such restrictions will not apply to such Third Party Software); or (ix) use the Licensed Software (or any part of it), KX’s Confidential Information or KX’s Intellectual Property Rights in order to build or offer a product or service (either for internal use or otherwise) which competes with, or provides the same or similar features, functionality or graphics of, the Licensed Software or otherwise use or copy any features, functions or graphics of the Licensed Software (or any part of it) or any of Kx’s Intellectual Property Rights.
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 cloud environment that you become aware of. You must promptly install the latest Releases, Versions, or patches of the Licensed Software and its dependencies that we may make available to you in accordance with the Software Support Terms. 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 install that Release, patch or Version.
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 the Licensed Software to deploy in the Cloud Provider’s environment 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.
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, manually providing us with such 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 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 license restrictions set out in clause 4 above (“License Restrictions”) and your volume and/ or permitted usage restrictions “Usage Restrictions”). 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 Restrictions, or you do not reasonably cooperate with such audit, you agree to allow us and/or our appointed accountancy or consultancy firm (“Auditors”) to audit pertinent records and visit any of your facilities (either your physical premises within your control and/or, upon reasonable request by you, by remote or virtual access to your Cloud Provider environment on which the Licensed Software is installed) for the purpose of conducting inspections of such environment and of your use of the Licensed Software in order to confirm your compliance with the License Restrictions and Usage Restrictions, including to perform an architecture review. You will reasonably cooperate with any audit/inspection and provide reasonable assistance and access to information. You are required to maintain computers, books, records and accounts to the extent required to evidence your compliance with the License Restrictions and Usage Restrictions and permit examination and copying thereof by us and our Auditors. Inspections will be made during normal business hours at a mutually convenient time and upon reasonable advance notice of no less than fourteen (14) days. We and the Auditors will sign a confidentiality agreement covering such inspections and will agree to be accompanied by an employee while on your premises and shall comply with your internal security policies and procedures. We will pay the fees associated with any such audit conducted by us (excluding your self-audit) unless the audit discloses that you are or were in non-compliance with any material provision of the Agreement, in which case you will pay the costs of the audit (in addition to our other rights in respect of such non-compliance).
6. OWNERSHIP OF THE LICENSED SOFTWARE
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. LIMITED WARRANTY
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 YOUR USE 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(i) 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. 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, and/or costs awarded against you 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 install any bug fix, patch, Release or Version to the extent such infringement would have been avoided by the use of the current Version, Release or bug fix or patch (as applicable); (v) trade mark infringements involving any marking or branding applied by you or 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 your violation of any Intellectual Property Rights in or to the Licensed Software.
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. LIMITATION OF LIABILITY AND DAMAGES
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 DATALOSS 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 12.4 BY EITHER PARTY 200% OF THE FEES PAID OR PAYABLE BY YOU TO CLOUD PROVIDER AS AGENT FOR KX IN THE 12 MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY (“SUPER CAP”); AND (II) FOR ALL OTHER CLAIMS, THE TOTAL FEES PAID OR PAYABLE BY YOU TO CLOUD PROVIDER AS AGENT FOR KX 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.
9.5 THE FEES REFLECT THE ALLOCATION OF RISK AND LIMITATION OF LIABILITY AGREED HEREIN AND THE PARTIES HAVE RELIED ON THE EXCLUSIONS AND LIMITATIONS IN DETERMINING TO ENTER INTO 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 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 Cloud Provider by us in order for us to provide the Services, collect our fees or otherwise comply with our obligations under this Agreement or our Marketplace agreement with Cloud Provider; 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. TERM AND TERMINATION
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 the License Restrictions 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 Cloud Provider Termination. This Agreement will automatically terminate if your Cloud Provider subscription is terminated.
11.4 Termination by Cloud Provider. You acknowledge that Cloud Provider has the right to terminate your access to the Licensed Software and our ability to provide the Services for convenience. In the event that Cloud Provider exercises such right, we shall notify you promptly and this Agreement shall terminate at the end of any winding-down period which is permitted by such Cloud Provider.
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 disable your access to and/or use of the Licensed Software and you shall immediately discontinue use of and delete the Licensed Software and certify in writing to KX that you have done so.
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. ADDITIONAL PROVISIONS
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.
12.2 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.
12.3 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 12.3 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 the Licensed Software, or perform support or services, due to an embargo, trade sanction or other comparable restrictive measure.
12.4 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. If in the course of providing any Services we are a processor of your personal data, the provisions of the Data Processing Agreement will apply. You acknowledge that we or any of our Affiliates may process any personal data that is collected by us in connection with registration to receive the Licensed Software and any Services in accordance with the privacy notice (as amended from time to time) that can be found or linked on the registration page or the designated support portal (as applicable) or that may otherwise be provided to you by us from time to time. . You acknowledge that any Personal Data you make available to us or to Cloud Provider as part of your access to the Licensed Software (e.g. email addresses and contact details) may be shared between us and Cloud Provider for the purposes of fulfilling our obligations under this Agreement. You will deploy the Licensed Software into your own Cloud Provider subscription for the purposes of facilitating the processing of your data. As between the parties, you are solely responsible for: (1) all technical and organizational measures related to the security and integrity of your Cloud Provider subscription; and (ii) securing and backing up your data which is processed by the Licensed Software.
12.5 General. This is the only Agreement between you and KX relating to your access to the Licensed Software via Cloud Provider. 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 in good faith in relation to its dealings with the other under the 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 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. 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. 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, any Intellectual Property Rights or other right, title, or interest in or to the Licensed Software, Services or Documentation. 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 and/ or the provision of any Services on immediate written notice to you if we are not permitted to deliver such Services or to grant you access to the Licensed Software due to an embargo, trade sanction or other comparable restrictive measure.
12.6 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.
12.7 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.
12.8 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.
12.9 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.
12.10 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.
SCHEDULE 1 – INFORMATION REPORTED
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):
“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: means any applicable data protection laws including, without limitation, the General Data Protection Regulation (EU) 2016/679 as it applies in the European Union (“GDPR”), the UK Data Protection Act 2018, the GDPR as it forms part of UK law by virtue of the European Union (Withdrawal) Act 2018 (“UK GDPR”), and any other applicable legislation in respect of privacy and/or processing Personal Data, each to the extent applicable to the activities or obligations of the parties under or pursuant to the Agreement, and as may be amended, supplemented or replaced from time to time. The terms “personal data”, “processing”, “data subject”, “controller”, and “processor” shall have the meaning given under the applicable Data Protection Laws.
“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 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.
“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 software bill of materials which will be made available to you at or before the point of download or provided during the performance of the Services, as applicable.
