1. SCOPE OF AGREEMENT

This Agreement (a) sets forth the terms on which Supplier will license, and provide software support services for, the Licensed Software to OEM Partner and (b) describes the OEM Partner Application utilizing the Licensed Software that OEM Partner may develop, distribute and license to its Customers and (c) sets out the Fees payable for the rights granted to OEM Partner under this Agreement.

OEM Partner will develop the OEM Partner Application in accordance with the requirements of this Agreement and any description in the Order Form (as may be updated from time-to-time by mutual written agreement of the Parties) and will use commercially reasonable efforts to develop and commercially release the OEM Partner Application as soon as reasonably practicable and in accordance with any timelines set forth in the Order Form.

2. LICENSED SOFTWARE LICENSE GRANTS

2.1 OEM Partner License(s). Subject to and provided OEM Partner complies with the terms of this Agreement, Supplier hereby grants OEM Partner a limited, non-exclusive, non-transferable license, without right of sublicense during the Subscription Term as follows:

1. the right to copy and install the Licensed Software in object code form onto a reasonable number of OEM Partner Computers for Development of the OEM Partner Application;
2. the right to copy and install the Licensed Software in object code form onto OEM Partner Computers for the purposes of making the OEM Partner Application available to its Customers (but not to Customer Clients) to use as a hosted service via the internet from OEM Partner’s cloud provider account;
3. the right to deploy copies of the Licensed Software as part of the OEM Partner Application to Customers and to install or allow Customers to install the OEM Partner Application on Customer Computers;
4. the right to provide trial licenses for prospective Customers solely as part of the OEM Partner Application (subject to any additional restrictions on trial licenses contained in the Order Form);
5. the right to further distribute and license the OEM Partner Application via its authorized Distributors to the same extent and scope as that applied to OEM Partner, provided that OEM Partner will ensure that anyone it authorizes to distribute and resell the OEM Partner Application does so only in compliance with section 2.6.

2.2 Licensed Software Requirements and Restrictions. OEM Partner will comply with the following restrictions and requirements in the exercise of the licenses granted under sections 2.1 (a)- 2.1 (e) above:

1. Permitted Use. OEM Partner will use the OEM Partner Application solely for the Permitted Use and for no other purpose.
2. Licensed Software Access. OEM Partner will ensure that (i) the Licensed Software is not exposed to the Customer independently from the OEM Partner Application; (ii) Customers do not have direct access to the executable code of the Licensed Software for any reason or by any method; and (iii)  Customers shall not be able to write Q or SQL code against the Licensed Software directly. Data may be fed into the Licensed Software by any method, but only the OEM Partner Application may extract data from the Licensed Software.
3. Substantial Value-Added Functionality. OEM Partner represents and warrants that the OEM Partner Application will have substantial value-added functionality to the Licensed Software, such that the primary purchasing decision of Customers is to obtain the functionality of the OEM Partner Application and not the Licensed Software.
4. Third Party Use. Except as permitted by section 2.1 above, the OEM Partner Application shall not be made available to any other persons or entities, including but not limited to Customer Clients. For the avoidance of doubt, this will not prohibit Customer Clients from accessing an interface or other intermediary system which interacts with the OEM Partner Application solely via screen access.
5. OEM Partner Application Trial License Restrictions. In no event will the OEM Partner Application Trial License described in section 2.1(d) be used for any Production or Development purposes of OEM Partner or any other third party. OEM Partner must sign a written license agreement with its Customer in accordance with section 2.2(g) which must also include the following additional restrictions: (i) the OEM Partner Application may only be used for evaluation purposes and not in Production; and (ii) the OEM Partner Application must be destroyed after a maximum period of 120 days from issuance unless otherwise approved in writing (including by email) by Supplier. The Trial License of the Licensed Software is provided “AS IS” without Software Support Services or any warranties or representations or liability of any kind, express or implied (to the extent permitted by applicable law).
6. Modifications, Reverse Engineering and Other Restrictions.  OEM Partner will not, and will not permit any third party (including but not limited to its Customers, Distributors and Affiliates) to (i) alter or modify, frame or mirror the whole or any part of the Licensed Software in any way whatsoever; (ii)  disassemble, decompile, reverse engineer, or reduce any part of the same to human-readable form or attempt to gain access to the source code (from the object code or via any other means); (iii) make Error Corrections, or otherwise prepare any derivative works or improvements (whether or not patentable) of the Licensed Software (in whole or in part); or (iv) use Third Party Software other than in accordance with the use rights that it has 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). In addition, OEM Partner will not, and will not permit any third party (including but not limited to its Customers and Affiliates) to, during and after the Subscription Term, use the Licensed Software (or any part of it) or any of Supplier’s Intellectual Property Rights or Supplier Confidential Information 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 Supplier Intellectual Property Rights.  OEM Partner will ensure that the OEM Partner Application will not enable the bypassing or circumventing any of the restrictions set forth in this Agreement nor unreasonably impair, degrade or reduce the performance or security of the Licensed Software.
7. Customer License Agreement.  OEM Partner will ensure that each distribution and license of an OEM Partner Application will be subject to a Customer License Agreement which is binding on Customers under applicable laws and regulations in the countries in which OEM Partner is providing access to the OEM Partner Application and which provides, at a minimum terms that are no less restrictive than, and at least as protective of Supplier, the Supplier Confidential Information, Supplier’s Intellectual Property Rights and the Licensed Software in all regards as the terms and conditions of the Agreement and will include (i) an internal use license grant only, (ii) the applicable restrictions set forth in section 2.2(f), (iii), the grant to OEM Partner of an audit right equivalent to that set out in section 2.5 below (which right OEM Partner will enforce at the request of Supplier), and (iv) a requirement that the Customer will delete the OEM Partner Application within a maximum of 10 Business Days of the termination of the Customer License Agreement  (collectively “Minimum Terms”)).
8. No Supplier Representation by OEM Partner. OEM Partner will not represent itself as an agent of Supplier, commit Supplier to any contracts or incur any obligation or liability whatsoever on behalf of Supplier for any purpose and OEM Partner will be solely responsible for, and Supplier and/or its Affiliates will have no obligation to honour any warranties that OEM Partner provides to Customers with respect to the OEM Partner Application.
9. Enforcement of Customer License Agreement. OEM Partner agrees to enforce the Customer License Agreements and will ensure and be liable for Customer’s compliance with the terms thereof. Where any violations or breaches of the Customer License Agreement in any way relate to the Licensed Software, OEM Partner will (i) promptly notify Supplier of the violation or breach and take action as reasonably required by Supplier at OEM Partner’s cost to enforce Customer’s compliance with the Customer License Agreement, (ii) not take any action with respect to such breach or violation (including waiving any rights with respect thereto) without Supplier’s prior written approval, and (iii) at Supplier’s request, allow Supplier to conduct and/or settle all negotiations and any litigation arising.
10. Combination.  OEM Partner will not combine, link or allow the combination or linking of the Licensed Software or of the OEM Partner Application with any Copyleft Materials.

2.3 Use of Virtualization Software.  OEM Partner and its Customers may run the OEM Partner Application on a virtualization platform; provided that, where the Usage Metric Limitation for the Licensed Software is Cores, each set of virtual Cores must be based on only one physical core and all Cores whether virtual or physical must be counted towards the Usage Metric Limitations.

2.4 Testing. OEM Partner acknowledges that the Licensed Software has not been prepared to meet OEM Partner’s requirements and that it is therefore the responsibility of OEM Partner to ensure that the facilities and functions described in the Documentation meet its requirements.  Supplier and its Affiliates will not be liable for any failure of the Licensed Software to provide any facility or function not specified in the Documentation. Furthermore, before commencing use of the OEM Partner Application for Customers in production, OEM Partner will test the Licensed Software for defects.

2.5 Audit.  OEM Partner will maintain full and accurate records of the use, copying and disclosure of the Licensed Software by OEM Partner, its Authorised Affiliates, Distributors and Customers. Upon request, a senior representative of OEM Partner will certify in writing that its use of the Licensed Software is in full compliance with the terms of this Agreement. During the Subscription Term and for twelve (12) months thereafter, and no more than once per year (unless Supplier reasonably suspects that OEM Partner is in breach of any term of the Agreement), Supplier may ask OEM Partner to complete a self-audit process to confirm compliance with the License Restrictions and Usage Metric Limitations. OEM Partner must promptly provide any information and documents that Supplier reasonably requests related to the verification. If there is a material discrepancy showing that OEM Partner has not complied with such License Restrictions or Usage Metric Limitations, or OEM Partner does not reasonably cooperate with such audit, OEM Partner will allow Supplier and/or its appointed accountancy or consultancy firm (“Auditors”) to audit pertinent records and visit any of OEM Partner’s facilities (either physical premises within its control and/or, upon reasonable request by OEM Partner, by remote or virtual access to your OEM Partner Computers) for the purpose of conducting inspections of OEM Partner Computers and of the use of the Licensed Software in order to confirm compliance with such License Restrictions and Usage Metric Limitations, including to perform an architecture review. OEM Partner will reasonably cooperate with any audit/inspection and provide reasonable assistance and access to information. 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. Supplier and the Auditors will sign a confidentiality agreement covering such inspections and will agree to be accompanied by an employee of OEM Partner while on its premises and shall comply with its internal security policies and procedures. Supplier will pay the fees associated with any such audit (excluding the self-audit) unless the audit discloses that OEM Partner is or was in non-compliance with any material provision of the Agreement, in which case OEM Partner will pay the costs of the audit (in addition to Supplier’s other rights in respect of such non-compliance).

2.6 Distribution. Supplier may permit OEM Partner to appoint a sales agent or a sub-distributor or re-seller for the OEM Partner Application (“Distributor”) provided that OEM Partner has notified Supplier of any such intended appointment and Supplier has not objected to such appointment (acting reasonably and without delay). Where Supplier does not object to appointment, OEM Partner will ensure that it enters into a written contract with such Distributor on terms which are no less restrictive than, and provide at least the same level of protection to Supplier and the Licensed Software in all regards as set out in this Agreement including, without limitation, by (i)  including terms regarding confidentiality and Intellectual Property Rights that are no less protective of Supplier Confidential Information and Supplier Intellectual Property Rights than those contained in this Agreement and requiring any Customer License Agreement entered into by any such Distributor to comply with the provisions of 2.2(f)); and (ii) that such Distributors will not make any misleading or deceptive statements regarding the Licensed Software, and will market and promote the Licensed Software solely in conjunction with, and as incorporated into, the OEM Partner Application, and solely in accordance with applicable law and any marketing guidelines regarding the Licensed Software provided by Supplier from time-to-time.  OEM Partner will assist Supplier to obtain legal standing, and provide all cooperation, assistance, evidence and testimony requested by Supplier, in the event that Supplier needs to assert any claims against a Distributor to protect or enforce Supplier’s Intellectual Property Rights or Supplier Confidential Information. OEM Partner will ensure and be liable for Distributor’s compliance with the terms of its Distributor agreement and will indemnify Supplier against any claims received by Supplier (including reasonable attorneys’ fees) as the result of the acts and/or omissions of any Distributor.

2.7 No Restriction. This Agreement is not exclusive and Supplier may itself and may authorize third parties to, without limitation, design, develop, produce, market, distribute, and otherwise commercialize or use the Licensed Software, any modifications or derivatives of the Licensed Software, or any products or services, and provide support and other services for or using such products, alone or with other products, services, and materials through any channel, and to any person, including resellers, value-added resellers, systems integrators, original equipment manufacturers, retailers, and end users.

3. SOFTWARE OWNERSHIP RIGHTS

3.1 Licensed Software Ownership.  Supplier is the sole and exclusive owner (or in relation to Third Party Software, an authorised licensee) of all right, title and interest in the Supplier Intellectual Property Rights and any Feedback. Where any such Intellectual Property Rights do not vest automatically in Supplier under this section 3.1, OEM Partner hereby assigns free of charge, all right, title and interest in such Feedback and other items described in section 3.1 upon their creation to Supplier.

3.2 OEM Partner Application Ownership.  OEM Partner owns all right, title and interest in the OEM Partner Application (excluding the Licensed Software and any Intellectual Property described in section 3.1 above) and in all of OEM Partner’s Intellectual Property Rights relating to the design, manufacture and operation of the OEM Partner Application (excluding the Licensed Software and Intellectual Property described in section 3.1).

3.3 OEM PARTNER RIGHTS DISCLAIMER. FOR THE AVOIDANCE OF DOUBT, OEM PARTNER DISCLAIMS ALL RIGHT, TITLE AND INTEREST IN THE LICENSED SOFTWARE, FEEDBACK AND SUPPLIER INTELLECTUAL PROPERTY (WHETHER IN WHOLE OR IN PART) REGARDLESS OF WHETHER THE LICENSED SOFTWARE IS EMBEDDED IN THE OEM PARTNER APPLICATION. OEM PARTNER IRREVOCABLY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL CLAIMS OEM PARTNER, ITS AUTHORISED AFFILIATES, EMPLOYEES AND CONTRACTORS (AND THEIR EMPLOYEES) MAY NOW OR HEREAFTER HAVE IN ANY JURISDICTION TO SO-CALLED “MORAL RIGHTS” (AND CONFIRMS IT HAS OBTAINED THE WAIVER AND FUTURE WAIVER OF ANY OF ITS AND ITS AUTHORISED AFFILIATES EMPLOYEES’ OR CONTRACTORS’ CLAIMS OF SUCH RIGHTS). OEM PARTNER WILL NOT APPLY FOR OR REGISTER ANY PATENTS, TRADEMARKS, OR COPYRIGHT WHICH USES OR REFERENCES ANY SUPPLIER INTELLECTUAL PROPERTY RIGHTS.

4. LICENSED SOFTWARE SUPPORT AND PROFESSIONAL SERVICES

4.1 Software Support Services. OEM Partner is solely responsible for providing technical support and maintenance to Customers for the OEM Partner Application, including the Licensed Software. During the Subscription Term, Supplier will provide Software Support Services in respect of the Licensed Software to OEM Partner only, but not to Customers or Distributors.

4.2 Professional Services. Supplier will perform any professional services provided for in the Order Form to OEM Partner in accordance with the Professional Services Terms.

5. FEES

5.1 Fees. Supplier shall invoice OEM Partner for, and OEM Partner shall pay, Fees due in accordance with the payment schedule set out in the relevant Order Form. 

5.2 Taxes.  Fees and other charges imposed under this Agreement will not include Taxes, all of which will be OEM Partner’s responsibility. OEM Partner agrees to pay or reimburse Supplier for all Taxes.

5.3 Overdue. If OEM Partner fails to make any payment due to Supplier under this Agreement by the due date for payment, then OEM Partner will pay interest on the overdue amount at the rate of the lesser of 1.5% per month and the maximum rate allowable under applicable law. Such interest will accrue on a daily basis from the due date until actual payment of the overdue amount.

5.4 Set Off.  OEM Partner will not withhold, reduce or set-off any Fees owed.

6. WARRANTY

6.1 Licensed Software Warranty.  Supplier warrants to OEM Partner only, and not to Customers, nor any Distributors, Authorised Affiliates or any other third party, that: (i) the Licensed Software will, as updated and used in accordance with the Documentation, perform substantially in accordance with the Documentation for a period of ninety (90) days from the Effective Date (“Warranty Period”); (ii) Supplier will use commercially reasonable steps to verify, using then current versions of industry standard SAST, SCA and DAST software, that the Licensed Software and any Release or Version thereof does not contain any Malicious Code on delivery to OEM Partner; and (iii) the Licensed Software does not contain any Copyleft Materials.  SUPPLIER DOES NOT WARRANT AND HEREBY DISCLAIMS 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, HARDWARE OR OPERATING PLATFORM OTHER THAN AS SET OUT IN THE DOCUMENTATION. SUPPLIER IS NOT RESPONSIBLE FOR ANY ANTI-VIRUS SOFTWARE OR VIRUS DETECTION ON OEM PARNTER’S OR CUSTOMERS’ SYSTEMS.

6.2 Remedy.  If during the Warranty Period the Licensed Software does not perform as warranted in section 6.1(i) above, Supplier will undertake to correct or replace the Licensed Software, or if correction or replacement of the Licensed Software is not reasonably possible, either party may terminate this Agreement and Supplier will refund to OEM Partner a pro-rata amount for the license fees paid here under for the applicable Licensed Software for any remaining period of the Subscription Term. THE FOREGOING ARE OEM PARTNER’S SOLE AND EXCLUSIVE REMEDIES FOR BREACH OF THIS WARRANTY. The foregoing warranties will apply only if (i) no modification, alteration or addition has been made to the Licensed Software by or on behalf of OEM Partner, and (ii) the non-conformance is due solely to the Licensed Software and not due, in whole or in part, to any other software, technology, data or other materials which interacts with the Licensed Software.

6.3 Power and Authority.  Each Party represents and warrants it has the power and authority to enter into this Agreement and to discharge its obligations hereunder.

6.4 Limited Warranty. OTHER THAN THE WARRANTIES EXPRESSLY STATED ABOVE, THERE ARE NO EXPRESS OR IMPLIED WARRANTIES RELATING TO THE LICENSED SOFTWARE, THE DOCUMENTATION OR THE SOFTWARE SUPPORT SERVICES WHICH SHALL BE PROVIDED ON AN “AS IS” BASIS.  SUPPLIER EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES THAT MAY APPLY, INCLUDING (WITHOUT LIMITATION) IN RELATION TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY AND NON-INFRINGEMENT.

7. INDEMNIFICATION

7.1 By Supplier.  Subject to the remainder of this section 7, Supplier will defend OEM Partner against, or at Supplier’s option, settle any Infringement Claim. Supplier will indemnify OEM Partner from any damages finally awarded against OEM Partner (including its reasonable attorney’s fees) in respect of the Infringement Claim.

7.2 Supplier Options.  If any third party makes, or notifies an intention to make, a claim against OEM Partner which may reasonably be considered likely to give rise to an Infringement Claim, or Supplier reasonably concludes that the Licensed Software may be liable to an Infringement Claim, Supplier may, at its own expense and option: (a) procure for OEM Partner the right to continue to use the Licensed Software in the OEM Partner Application according to the terms of this Agreement, (b) replace the infringing components of the Licensed Software with other components with the same or similar functionality, or (c) 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 Supplier on commercially reasonable terms, Supplier may terminate this Agreement without further liability to OEM Partner except (i) as provided in section 7.1 above; and (ii) Supplier will refund OEM Partner a pro-rata amount of any pre-paid Fees for the duration of any pre-paid subscription period for which OEM Partner is unable to use the Licensed Software.  OEM Partner will cooperate with Supplier in the return of the Licensed Software. This section 7 states Supplier’s entire liability to OEM Partner in respect of the Infringement Claim.

7.3 Limitation.  Notwithstanding the provisions of section 7.1 above, Supplier assumes no liability for and does not indemnify OEM Partner against (a)  infringements which would not have arisen without (i) the combination, connection or integration by OEM Partner of the Licensed Software with any third party software or hardware products not approved by us or stated as compatible with the Licensed Software in the Documentation;  (ii) modifications to the Licensed Software made by any Person other than Supplier or which are not made under Supplier’s direction, or (iii) use by OEM Partner of an unsupported Version or Release of the Licensed Software pursuant to the Software Support Terms;  (b) trademark infringements involving any marking or branding applied by or at the request of OEM Partner and not approved by Supplier, or (c) infringements arising from OEM Partner’s negligence or willful infringement.

7.4 By OEM Partner.  Subject to the remainder of section 7, OEM Partner agrees to indemnify and hold Supplier harmless against any damages and/or costs awarded against Supplier or any of its Affiliates or agreed in settlement by OEM Partner  (including reasonable attorneys’ fees) arising out of a claim, suit or proceeding brought by a third party (i) arising out of or in connection with OEM Partner’s or Customer’s violation of any Intellectual Property Rights in or to the Licensed Software; (ii) alleging that the OEM Partner Application infringes, misappropriates or violates any Intellectual Property right or trade secret of any third party (excluding any infringement or misappropriation based on OEM Partner’s authorized use of the Licensed Software hereunder);  or (iii)  arising out of any warranties or representations made by OEM Partner or any Distributor which differ from those provided by Supplier herein.

7.5 Indemnity Procedure. Each Party’s indemnification obligations (the “Indemnifying Party”) under this section 7 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 7 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 defence 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.

8. LIMITATION OF LIABILITY AND DAMAGES

8.1 UNLIMITED LIABILITY. NEITHER PARTY WILL EXCLUDE OR LIMIT ITS LIABILITY RESULTING FROM: (A)  EITHER PARTY’S INDEMNIFICATION OBLIGATIONS PROVIDED IN THIS AGREEMENT; (B) DEATH OR BODILY INJURY ARISING FROM EITHER PARTY’S NEGLIGENCE; (C) FRAUD; (D) ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW; OR (E) ANY VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS (INCLUDING ANY CUSTOMER VIOLATION OF THE SUPPLIER’S INTELLECTUAL PROPERTY) (COLLECTIVELY “EXCLUDED CLAIMS”).

8.2 EXCLUSION OF DAMAGES. EXCEPT FOR EXCLUDED CLAIMS, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY LOSS OF USE,  CORRUPTION OF SOFTWARE, LOSS OR DAMAGE TO OR CORRUPTION OF DATA, LOSS OF OR DAMAGE TO GOODWILL, INTERRUPTION OF BUSINESS, LOSS OF PROFITS, LOSS OF SALES OR REVENUE, LOSS OF ANTICIPATED SAVINGS, WASTED EXPENDITURE (INCLUDING PROCUREMENT COSTS AND MANAGEMENT TIME) OR ANY CONSEQUENTIAL, SPECIAL, PUNITIVE, INCIDENTAL, OR INDIRECT DAMAGES OF ANY KIND UNDER ANY CAUSE OR ACTION WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), FOR BREACH OF STATUTORY DUTY, WARRANTY, STRICT LIABILITY, PRODUCT LIABILITY, OR ANY OTHER FORM OF ACTION, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

8.3 LIABILITY CAP. SUBJECT TO SECTIONS 8.1 AND 8.2, 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 WILL BE LIMITED TO AN AGGREGATE AMOUNT NOT EXCEEDING (I) IN THE CASE OF A BREACH OF SECTION 9 (CONFIDENTIAL INFORMATION) OR SECTION 12.16 (DATA PROTECTION) BY EITHER PARTY TWO TIMES THE TOTAL FEES PAID OR PAYABLE UNDER THE APPLICABLE ORDER FORM GIVING RISE TO THE CLAIM 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 UNDER THE APPLICABLE ORDER FORM GIVING RISE TO THE CLAIM IN THE 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 OEM PARTNER TO SUPPLIER.

8.4 CONCURRENT LIABILITY. IN NO EVENT SHALL EITHER PARTY 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.

8.5 RESPONSIBILITY. OEM PARTNER ACCEPTS RESPONSIBILITY FOR THE SELECTION OF THE LICENSED SOFTWARE AND ACKNOWLEDGES THAT THE LICENSED SOFTWARE HAS NOT BEEN DEVELOPED TO MEET OEM PARTNER’S INDIVIDUAL REQUIREMENTS. OEM PARTNER WILL BE SOLELY RESPONSIBLE FOR ANY ACTIONS IT TAKES OR OMITS TO TAKE BASED ON ITS USE OF THE LICENSED SOFTWARE.

9. CONFIDENTIAL INFORMATION

9.1 Non-Disclosure.  Each Party agrees that during the Subscription Term and for a period of five (5) years thereafter, it (i) will treat as confidential all Confidential Information of the other Party, (ii) will not use such Confidential Information except as expressly set forth 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 prohibit 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 to exercise and enforce the rights and perform the obligations of such Party under this Agreement, and subject to confidentiality obligations at least as protective as those set forth herein. The receiving party of any Confidential Information will be responsible to the disclosing party for any unauthorised 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.

9.2 Exceptions.  The foregoing restrictions will not apply to information that (a) the receiving party can demonstrate was known to the receiving party at the time of communication to it, (b) has become publicly known through no wrongful act of the receiving party, (c) has been rightfully received from a third Party authorized to make such communication without restriction of which the receiving party was aware, (d) has been independently developed by the receiving party without access to or use of the Confidential Information, (e) has been approved for release by written authorization of the disclosing party, or (f) 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 such disclosure to allow the owning Party reasonable opportunity to object to and take necessary legal action to prevent such disclosure.

9.3 Disclosure of Agreement Terms.  Each Party agrees not to publicize or disclose the terms of this Agreement (including, without limitation, the Fees) to any third party without the prior written consent of the other Party, except under an appropriate non-disclosure agreement to a Party’s Affiliates, lawyers, investors, potential investors, investment bankers, lenders, accountants, employees and other representatives as is reasonably necessary.

9.4 Product Descriptions.  OEM Partner will not publish any technical description of the Licensed Software beyond descriptions published by or provided to it by Supplier.

9.5 Benchmark Test Results.  OEM Partner will not disclose benchmark, test or performance information or any report which contains a competitive analysis regarding the Licensed Software to any third party except as explicitly authorized in advance by Supplier in writing.

10. TRADEMARKS AND PUBLICITY

10.1 Promotion: OEM Partner undertakes and agrees to use reasonable endeavours to promote the distribution and sale of the OEM Partner Application and to expand the sale of the OEM Partner Application by all reasonable and proper means and not to do anything which may hinder or interfere with such sales and, without limitation, to;

1. demonstrate to Customers the features and capabilities of the OEM Partner Application; and
2. actively solicit orders for the OEM Partner Application from Customers and prospective Customers.

10.2 Trademark Use.  During the term of this Agreement, each Party will have the right to indicate to the public that OEM Partner is an OEM distributor of the OEM Partner Application utilizing the Licensed Software.  Each Party hereby grants the other Party a non-exclusive, non-transferable, non-sublicensable license for the term of this Agreement to use the other Party’s designated trademarks and logos in connection with the publicity permitted by this section 10.  Nothing herein will grant either Party any right, title or interest in the other Party’s trademarks, service marks, trade names or logos, except as set forth above.  At no time during or after the term of this Agreement will either Party attempt to register any trademarks, service marks, logos or trade names confusingly similar to those of the other Party. OEM Partner will not publish or employ, or co-operate in the publication or employment of, any false, misleading or deceptive advertising material or other misrepresentations with regard to Supplier or the Licensed Software.

10.3 Trademark Use Approval.  All representations of a Party’s trademarks or logos that the other Party intends to use will first be submitted to the first Party for approval (which will not be unreasonably withheld) of design, color, and other details or will be exact copies of those used by trademark or logo owner.  If a Party’s trademarks or logos are to be used in conjunction with another trademark or logo, the trademark or logo will be presented equally legibly and equally prominently as the other, but nevertheless separated from the other so that each appears to be a mark in its own right, distinct from the other mark. OEM Partner will not:

1. use any of Supplier trademarks, service marks, trade names, or logos in any way which might prejudice their distinctiveness or validity or the goodwill of Supplier therein;
2. use in relation to the Licensed Software any trademarks or logos other than Supplier trademarks or logos supplied or approved by Supplier without obtaining the prior written consent of Supplier; or
3. use any trademarks, service marks, logos or trade names so resembling any trademark or trade names of Supplier as to be likely to cause confusion or deception.

10.4 Copyright and Other Ownership Notices. Whenever OEM Partner is permitted to copy or reproduce all or any part of the Licensed Software or Documentation, all titles, trademark symbols, copyright symbols and legends, and other proprietary markings must be reproduced in the form provided by Supplier. OEM Partner agrees to maintain the OEM Partner Computers and media on which the Licensed Software is copied in a secure place.  OEM Partner will not 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 or Documentation, including any copy thereof.

10.5 Publicity.  Supplier and OEM Partner may announce that OEM Partner is an OEM partner of the Licensed Software.  Supplier and OEM Partner may each list OEM Partner as an OEM distributor and partner of the Licensed Software, including on their respective websites and in marketing materials.  Each Party grants the other Party a non-exclusive, non-transferable, non-sublicensable license for the term of this Agreement to use the other Party’s up to date trademarks in connection with the publicity permitted by this section 10.5. Any other publicity shall be jointly agreed between the Parties.

11. SUSPENSION AND TERMINATION

11.1 Termination for Cause.  Either Party may terminate this Agreement and/or the applicable Order Form at any time upon written notice to the other Party if (i) the other Party materially breaches any provision of this Agreement and fails to cure such breach (where curable) within thirty (30) days after receiving written notice of such breach from the other Party; (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 creditors, or (iv) if there are instituted by or against the other Party proceedings in bankruptcy, reorganization, receivership or dissolution and such proceeding is not stayed or dismissed within sixty (60) days.  Supplier will be permitted to terminate or suspend the Agreement and/or the applicable Order Form and/or any Services (including OEM Partner’s ability to use, access and/or renew its license or license keys) immediately on written notice to OEM Partner if (i) OEM Partner becomes more than 120 days delinquent on its Fee payment or  breaches section 2.2 of this Agreement; or (ii) the power to conduct OEM Partner’s affairs (whether by means of holding of shares, possession of voting rights, conferment of powers by articles of association or of incorporation or by any other means) is or becomes held by a Person or group of Persons whom Suppliers reasonably considers to be a direct competitor of Supplier without Supplier having given consent to such change of control.

11.2 Effect of Termination.

1. Subject to section 11.2 (b) all rights granted under this Agreement will cease upon termination and OEM Partner will make no further use of the Licensed Software or Documentation which has been the subject of termination. Within ten (10) Business Days after termination or expiry of a Subscription Term or Wind Down Period (defined below) for the applicable Licensed Software, OEM Partner will destroy the originals and all copies of the Licensed Software and Documentation in the possession or under the control of OEM Partner, its Authorised Affiliates, Distributors or its Customers and will certify to Supplier in writing signed by an officer or senior vice president OEM Partner’s compliance with these requirements. In addition, OEM Partner will within the same time cease to use all of Supplier’s trademarks, service marks, trade names or logos and, at Supplier’s election, destroy or deliver to Supplier all materials in its control or possession which bear such trademarks, service marks, trade names or logos.
2. Where Supplier gives notice to the OEM Partner of non-renewal of the Order Form in accordance with the terms of the Order Form, OEM Partner may for a period of up to two (2) years from the notice of non-renewal (“Wind Down Period”) (subject to continued payment of any and all Fees by OEM Partner) (i) continue to use the Licensed Software on the terms of this Agreement solely to the extent necessary to permit their existing Customers with Customer License Agreements in place at the date notice of non-renewal was given to OEM Partner to continue to use the OEM Partner Application according to the terms of this Agreement and (ii) continue to provide the Software Support Services to OEM Partner the extent necessary to service the existing Customers referred to in (i) above. OEM Partner may not, after receiving notice of non-renewal, license OEM Partner Application(s) (with the Licensed Software) to new Customers. The foregoing is subject to the terms of this Agreement, which will continue to govern any obligations and rights of the Parties under this Section 11.2(b).
3. The Parties agree that general communications to Customers and any publications/press releases regarding such termination will be mutually agreed upon, in writing, prior to distribution.

12. GENERAL

12.1 Independent Contractors.  The Parties to this Agreement are independent contractors.  Nothing contained herein or done pur­suant to this Agreement will 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 will 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.

12.2 Governing Law and Jurisdiction.  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) will be governed by and construed in accordance with the laws set out below. 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 it considers necessary to protect its 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 this Agreement (including non-contractual disputes or claims) will be subject to the exclusive jurisdiction of the courts set out below.  Each Party hereby waives any disputes it may have with respect to proper venue.

OEM Partner’s Domicile (registered address as stated on the Order Form)	Governing Law	Venue (courts with exclusive jurisdiction)
Americas, Canada, Middle East; Africa	New York	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
United Kingdom, Europe, Pacific and Asia, Australia and New Zealand	England & Wales	London

 

12.3 Dispute. Except in the case of a Party seeking to exercise its right to terminate or suspend any licenses under this Agreement, or seek injunctive relief or any other provisional remedy, or in the case of infringement or misappropriation of Supplier’s Intellectual Property Rights or violation or disclosure of Confidential Information, in the event of a dispute between the Parties relating to this 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.

12.4 U.S. Government Use of Software.  The Licensed Software (including all components) is commercial in nature and developed solely at private expense and is “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 (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 this Agreement. Use of the Licensed Software (including all components) is an agreement by the U.S. Government that the Licensed Software (including all components) include “commercial computer software” and “commercial computer software documentation” and constitutes acceptance of the rights and restrictions in this Agreement.

12.5 Notices. All notices made pursuant to this Agreement must be made in writing.  Any written notice to be given or made pursuant to the provisions of this Agreement shall be sent postage prepaid by registered or recorded mail or reputable courier service, addressed to the other Party’s address stated in the Order Form or as otherwise notified to the other Party (in the case of a notice to Supplier, with a copy by email to KXLegal@kx.com) and shall be marked for the attention of “The Company Secretary”.  Unless otherwise provided in this Agreement, all notices shall be deemed as received five (5) days from proof of postage in accordance with this section.

12.6 Assignment, Successors and Subcontracting.  This Agreement shall be binding and inure to the benefit of the Parties and their respective permitted successors (as notified to Supplier) and assignees. Subject to the next sentence, OEM Partner will not assign, transfer or novate any of its rights nor delegate any of its obligations under this Agreement to any third party without Supplier’s express written consent. OEM Partner may assign this Agreement to any of its Authorised Affiliates for the purposes of internal reorganisation or to a successor of its business in the event of a reorganization or merger or the sale of its business or all or substantially all of its assets to a third party upon written notice to Supplier conditioned upon such successor business not being a competitor of Supplier (determined by Supplier in its reasonable discretion). Supplier may assign, transfer or novate all or any its rights and obligations under this Agreement to any of its Affiliates for the purposes of internal reorganization or to any company to which it transfers all or a substantial part of its assets or business provided that the assignee, transferee or novatee undertakes to OEM Partner to be bound by and perform Supplier’s obligations under this Agreement. Any attempted assignment without required approvals will be null and void and of no legal effect. Supplier may subcontract all or part of the Services to third parties or Affiliates (subcontractors) and/or use Affiliates to perform the Services provided that it has a written agreement with them that contains industry standard confidentiality obligations and Supplier remains responsible for breaches of the Agreement caused by its subcontractors and Affiliates and subject to any Data Processing Agreement incorporated into the Agreement.

12.7 Usage by Affiliates. Where the Order Form provides for usage of the Licensed Software by Authorised Affiliates, such usage will be restricted to the Authorised Affiliates listed on the Order Form. OEM Partner will be responsible and liable for any losses, costs, expenses or damages incurred by, or claims received by, Supplier as the result of the acts and/or omissions of OEM Partner’s Authorised Affiliates. OEM Partner agrees that any act or omission by any such Authorised Affiliate that would be a breach of the Agreement if the Authorised Affiliate were a Party to the Agreement will be considered a breach by OEM Partner. The rights of OEM Partner’s Authorised Affiliates with respect to the Licensed Software will be no greater than OEM Partner’s rights, and the obligations of its Authorised Affiliates with respect to the Licensed Software will be no less than its obligations.  OEM Partner will take all such steps as are necessary to ensure that its Authorised Affiliates comply with the terms and conditions of the Agreement to the same extent as it is obligated to comply with such terms and conditions.

12.8 Force Majeure.  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 Services. Dates or times by which each Party is required to render performance under the Agreement will be postponed automatically to the extent and for so long that the Party is delayed or prevented from meeting them by such causes. Supplier may terminate this Agreement and/or the provision of any Services on immediate written notice to OEM Partner if Supplier is not permitted to deliver such Services or to grant OEM Partner or any Customer access to the Licensed Software due to an embargo, trade sanction or other comparable restrictive measure.

12.9 Waiver.  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 will not constitute a waiver thereof and no waiver of any breach of the Agreement will operate as a waiver of any subsequent or continuing breach.

12.10 Entire Agreement and Amendment.  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. This Agreement may be amended or modified only in a written document signed by authorized representatives of each Party. The order of precedence shall be as detailed in the Order Form. The terms and conditions of the Agreement shall prevail notwithstanding any other terms and conditions of any purchase order or other ordering document submitted or purported to be relied upon by OEM Partner.

12.11 Severability. If any provision of this Agreement is found to be invalid or unenforceable by a court of competent jurisdiction, such provision will be severed from the remainder of this 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 this 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.

12.12 Surviving Provisions of Agreement.  Termination of the Agreement or an Order Form by either Party shall in no way prejudice any existing right or claim or relieve you from your obligation to pay us any sums accrued or due prior to the date of such termination. Together with any other provision which is either expressed to or by implication is intended to survive termination, the provisions of section 2.2 (“Licensed Software Requirements and Restrictions”), section 2.5 (“Audit”), section 3 (“Software Ownership Rights”), section 7 (“Indemnification”), section 8 (“Limitation of Liability and Damages”), section 9 (“Confidential Information”), section 10 (“Trademarks and Publicity ”) section 11 (“Term and Termination”) and Section 12 (“General”) will survive the termination of this Agreement for any reason.  All other rights and obligations of the Parties will cease upon termination of this Agreement or the applicable Order Form.

12.13  Equitable Relief. Each Party agrees that a breach or threatened breach by such Party of any of its obligations under section 9 (Confidential Information) or, any unauthorized use by OEM Partner or a Customer of the Licensed Software or any Supplier Intellectual Property Rights, 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.

12.14 Trade Control.  OEM Partner acknowledges that any 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”). OEM Partner agrees 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. OEM Partner will not, and will not allow any third party (including any Customer or Distributor), 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 12.14 shall be governed in accordance with section 12.2 unless Trade Control Laws determine otherwise. OEM Partner acknowledges that Supplier 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.

12.15 Compliance with laws and Anti-Bribery. Supplier will perform its obligations under this Agreement in compliance with any laws which apply to it, without regard to OEM Partner’s specific use of the Licensed Software. OEM Partner will use the Licensed Software in compliance with all laws which apply to it.  Each Party will comply with all applicable laws, statutes, rules, regulations and codes relating to anti-bribery and anti-corruption including but not limited to the US Foreign Corrupt Practices Act 1977 and the UK Bribery Act 2010.

12.16 Data Protection. (a) Each Party agrees to comply with its applicable obligations under 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 OEM Partner’s personal data, the provisions of the Data Processing Agreement will apply. OEM Partner acknowledges that Supplier and any of its Affiliates may process any personal data that is collected by Supplier in connection with registration to receive 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.  (b) OEM Partner will deploy the Licensed Software into its own Operating Platform for the purposes of facilitating the processing of its data. As between the parties, OEM Partner and Customers are solely responsible for: (1) all technical, administrative and organizational measures related to the security and integrity of the Operating Platform; and (ii) securing and backing up its and Customer’s data which is processed by the Licensed Software.

12.17 Third Party Rights No person other than the Parties to the Agreement, including but not limited to Distributors or Authorised Affiliates, will have the right to enforce any term of the Agreement. In particular, a person who is not a Party to the Agreement will not derive the right to enforce any of the terms of the Agreement including, where the laws of England and Wales apply, by virtue of the Contracts (Rights of Third Parties) Act 1999 and the rights of any third party under that act are hereby expressly excluded.

12.18 Evaluation and Temporary Licenses. From time to time, Supplier may offer additional copies of our proprietary software products to OEM Partner on a temporary basis for reasonable amounts of usage for evaluation and trial use (collectively, “Evaluation Products”). OEM Partner’s use of Evaluation Products is subject to any additional terms that Supplier may specify and is only permitted during the period which Supplier designates (or, if not designated, until terminated in accordance with this Agreement). In addition, from time to time, Supplier may provide OEM Partner with additional copies of our proprietary software products or increase your usage metrics for the Licensed Software on a temporary basis. OEM Partner’s use of such additional products or increased usage metrics is only permitted during the period which Supplier designates (or, if not designated, until terminated in accordance with the Agreement). EXCEPT AS OTHERWISE SET FORTH IN THIS SECTION OR AS OTHERWISE AGREED WITH OEM PARTNER IN WRITING, THE TERMS AND CONDITIONS OF THE AGREEMENT FULLY APPLY TO THE USE OF SUCH PRODUCTS OR ADDITIONAL USAGE METRICS. NOTWITHSTANDING ANYTHING CONTAINED ABOVE, SUPPLIER’S LIABILITY RELATING TO EVALUATION PRODUCTS OR SOFTWARE PROVIDED ON A TEMPORARY BASIS FREE OF CHARGE, INCLUDING ANY SERVICES PROVIDED DURING A FREE EVALUATION PERIOD, WILL BE LIMITED TO FIVE THOUSAND US DOLLARS (US$ $5,000).

12.19 Reservation of Rights. Except for the limited rights and licenses expressly granted under the Agreement, nothing in the Agreement grants, by implication, waiver, estoppel, or otherwise, to OEM Partner or any third party, any Intellectual Property Rights or other right, title, or interest in or to the Licensed Software or other Supplier Intellectual Property. Nothing in this Agreement grants or conveys, or permits OEM Partner to grant or convey, any ownership right in any of the Licensed Software or any article or copy thereof or Intellectual Property therein.

12.20 Counterparts and Electronic Signature. This Agreement may be executed in one or more counterparts, each of which is an original, and all of which together constitute only one agreement between the Parties. Delivery of an executed counterpart to this Agreement by fax or by email of a scanned copy, or execution and delivery through an electronic signature service (such as DocuSign), will be effective as delivery of an original.

 

DEFINITIONS & INTERPRETATION

“Affiliate”	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.
“Agreement”	means the definition provided in the Order Form.
“API”	means an application programming interface and accompanying or related Documentation, code, tools, executable applications, libraries, subroutines and other materials (and all derivative works or modifications of any of the foregoing) that allows other software to communicate with or call on Licensed Software, including any access code, authentication keys or similar mechanisms to enable access of the APIs.
“Authorised Affiliate”	means those of OEM Partner’s Affiliates listed in the Order Form which are in existence at the date of the Order Form or subsequently agreed to in writing by Supplier who are permitted to access and use the Licensed Software in accordance with this Agreement.
“Business Hours”	means the period from 9.00 am to 5.00 pm on any Business Day.
“Business Days”	means Monday to Friday excluding public holidays in the jurisdiction from where Professional Services are performed and if no Professional Services are performed, has the meaning given in the Software Support Terms.
“Computer Provider”	means the provider of the OEM Partner Computers on which the Licensed Software is installed and who operates and maintains the computers on your behalf but does not control the operation of, and cannot access the functionality of, the Licensed Software. You shall remain responsible for any Computer Providers you appoint.
“Confidential Information”	means (a) information, in any form, disclosed by a Party or its Affiliates (the disclosing party) to the other Party or its Affiliates (the receiving 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 businessperson under the circumstances of disclosure; and (b) the Licensed Software, Documentation and other Supplier Materials.
“Contractor”	means an independent contractor to OEM Partner that has entered into a written agreement with OEM Partner that obligates the Contractor and its employees to industry standard confidentiality obligations and in respect of whom you shall remain responsible.
“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.
“Core”	means a core instruction processing circuit integrated onto a Processor.  A Processor may contain multiple Cores. In the event cores are the Usage Metric Limitation in the Order Form and OEM Partner elects to run the Licensed Software on a virtualized platform, each virtual core will count towards the Usage Metric Limitation for purposes of calculating the Fees due to Supplier.
“Customer”	means a customer to whom OEM Partner (or where detailed in the Order Form, its Authorised Affiliates) or Distributor makes available the OEM Partner Application for their internal use and not for transfer or any further licensing or sub-licensing of the OEM Partner Application and who are required to have entered into a Customer License Agreement.
“Customer Client”	means a third party with whom a Customer carries on business.
“Customer Computer”	means on premise computers or compute locations owned by or under the exclusive control of a Customer.
“Customer License Agreement”	means a written and executed agreement entered into between OEM Partner or its Distributors or Authorised Affiliates, as applicable, with its or their Customer, pursuant to which that Customer licenses the OEM Partner Application and which includes Minimum Terms.
“Data Protection Laws”	means any applicable data protection laws including, without limitation, the General Data Protection Regulation (EU) 2016/679 as it applies in the European Union (“GDPR”), the UK Data Protection Act 2018, 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.
“Development”	means internal use of the Licensed Software by OEM Partner Employees and Contractors solely for non-Production purposes for development, internal testing and ongoing debugging of OEM Partner Application, and for the purposes of demonstrating the OEM Partner Application to Customers and prospective Customers but excluding any sale, resale or distribution of the Licensed Software.
“Distributor”	means the definition provided at section 2.6.
“Documentation”	means Supplier’s then-current technical and/or functional documentation for the applicable Licensed Software which is either made available at Documentation for KX products – Product documentation or delivered or made available to OEM Partner in eye-readable form with the Licensed Software to assist in the use of the Licensed Software and as may be updated from time to time by Supplier.
“Employee”	means any employee of OEM Partner who has entered into a written employment or other agreement with OEM Partner that obligates the employee to industry standard confidentiality obligations.
“Error”	has the meaning given in the Software Support Terms.
“Error Correction”	has the meaning given in the Software Support Terms.
“Feedback”	means bug reports, input, comments or suggestions from OEM Partner or its Affiliates, provided on a voluntary basis and without warranty, regarding Supplier’s and its Affiliates’ business and technology and/or the possible creation, modification, correction, improvement or enhancement of Supplier’s and its Affiliates’ software, products and/or services exclusive of your Confidential Information.
“Fees”	means the Fees payable under this Agreement as detailed in the Order Form.
“Initial Subscription Term”	means the term detailed in the Order Form in relation to the initial duration the license of the Licensed Software.
“Infringement Claim”	means third party claims, suits and/or proceedings brought against OEM Partner or any of your Authorised Affiliates alleging that its use of the Licensed Software in the OEM Partner Application as expressly authorized under this Agreement infringes any Intellectual Property Rights of a third party.
“Intellectual Property Rights”	means patents, utility models, rights to inventions, copyright and related rights, trademarks 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 computer software and preparatory design materials, moral rights, database rights and any other Intellectual Property Rights, 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.
“Key File(s)”	means a confidential security code or electronic file provided by Supplier that enables the Licensed Software to be used by OEM Partner in accordance with this Agreement.
“License Restrictions”	means those restrictions relating to the use of the Licensed Software set out in section 2.2.
“Licensed Software”	means software listed on the Order Form, in its compiled code form or if Supplier provides any elements in source code form, in source code form, and all Releases, new Versions, updates, enhancements and fixes provided by Supplier to OEM Partner pursuant to this Agreement (including as part of the Software Support Services) and the Key Files therefor. The Licensed Software does not include New Products.
“Malicious Code”	means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Minimum Terms”	means the definition provided at section 2.2(f).
“New Product”	means a Supplier software product that either (a) provides significantly different or added functionality from the Licensed Software, or (b) is of significantly different design than the Licensed Software even if the New Product includes some of the functionality of the Licensed Software (in whole or in part).
“OEM Partner Application”	means the application software program described in the Order Form developed by or on behalf of OEM Partner into which the unmodified Licensed Software will be integrated and deeply embedded, or which is ‘bundled’ or combined with OEM Partner’s product such that together they comprise a single unique OEM Partner Application that is being provided by OEM Partner to a Customer, and such that the Licensed Software is a component of a larger set of surrounding code and functions that has significantly added new and independent functionality and custom features that together compromise a unique OEM Partner Application beyond those available in the Licensed Software.
“OEM Partner Computer”	means on premise computers or compute locations (being AWS, GCP or Azure, unless otherwise agreed in the Order Form) under OEM Partner’s exclusive operational control or under the control of a Computer Provider with access controlled to ensure that only Employees or Contractors of OEM Partner are able to directly access and use the Licensed Software.
“Order Form”	means the document agreed and executed between the Parties, which sets out the Licensed Software and/or any Services to be provided by Supplier to OEM Partner and confirms the applicable terms and documents which will then form part of the Agreement in relation thereto.
“Operating Platform”	means the operating system software as stated in the Documentation.
“Permitted Use”	means the authorized use of the Licensed Software as expressly stated in this Agreement and as may be further stated in the Order Form.
“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.
“Processor”	means a physically discrete integrated circuit chip having one or more Cores contained on it.
“Production”	means, unless otherwise stated in the Documentation, an operational environment into which the Licensed Software has been installed, which is processing live data and which has been deployed so that the intended users of the environment are able to access the live data.
“Professional Services”	means Professional Services to be provided as set out in the Order Form, and subject to the provisions of the Professional Services Terms.
“Release”	has the meaning given in the Software Support Terms.
“Renewal Subscription Term”	means, in respect of any Licensed Software the renewal term(s) detailed in the Order Form.
“Services”	means as applicable and detailed in an Order Form, the Software Support Services and/or any Professional Services.
“Software Support Services”	means the software related support services to be provided by Supplier as set out in the Order Form, and subject to the provisions of the Software Support Terms.
“Software Support Terms”	are those terms for Software Support Services referenced in the Order Form.
“Supplier Intellectual Property Rights”	means the Intellectual Property Rights in: (i) the Licensed Software and Documentation; (ii) Supplier Materials which were developed or obtained by us or our Affiliates prior to or independently of the Agreement; (iii) Supplier Materials developed or obtained by us or our Affiliates in the performance of the Software Support Services; and (iv) and any inventions, customizations, enhancements, improvements, updates, derivative works and other modifications thereof.
“Supplier Materials”	means all software (in object and source code form), programs, tools, materials, information, concepts, designs, utilities, ancillary tools, processes, methodologies, database schema, APIs, dashboards, user interfaces, or any work product in generic format, or methodologies, that are Supplier’s or its Affiliates’ property.
“Subscription Term”	means the term of a Licensed Software subscription identified in the applicable Order Form, including the Initial Subscription Term and all Renewal Subscription Terms.
“Taxes”	means all federal, state, dominion, provincial, or local sales, use, personal property, excise, withholding or other taxes, fees, or duties arising out of the Agreement or the transactions contemplated by the Agreement (other than taxes on Supplier’s net income and on the payment of Supplier employees’ salaries).
“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 OEM Partner at or before the point of download or provided during the performance of the Services, as applicable.
“Trade Control Laws”	has the meaning given in section 12.14.
“Usage Metric”	means the standard of measurement for calculating the fees due for the applicable Licensed Software as set forth in the Order Form.
“Usage Metric Limitations”	means the limitations on use of the Licensed Software specified in the Order Form.
“Version”	means the definition provided in the Software Support Terms.
“Warranty Period”	has the meaning ascribed to it in section 6.

 

RULES OF INTERPRETATION

In this Agreement, unless otherwise stated:

1. the section, paragraph, schedule and other headings in this Agreement are included for convenience only and will have no effect on interpretation;
2. a reference to any English (where English law applies) or to any New York (where New York law applies) action, remedy, method of judicial proceeding, court, official, legal document, legal status, legal doctrine, legal concept or thing shall, in respect of any other jurisdiction, be deemed to include a reference to that which most nearly approximates to the English/ New York (as applicable) equivalent in that jurisdiction;
3. words in the singular include the plural and vice versa;
4. any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions will be construed as illustrative only and will not limit the sense of any word, phrase, term, definition or description preceding those words;
5. a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form (including email); and
6. a reference to legislation is a reference to that legislation as amended, extended, re-enacted or consolidated from time to time and a reference to legislation includes all subordinate legislation made from time to time under that legislation.