On-Premise Licenced Software Terms

Capitalized terms used below without definition have the meanings assigned to such terms in the KX General Terms & Conditions, which form part of the Agreement.

1. Licensed Software Internal Use Licence Grant

1.1 Grant of Rights. Subject to and provided you comply with the terms of the Agreement, we hereby grant to you a limited, non-transferable, non-exclusive license, without right of sublicense, for the applicable Subscription Term, to install and execute the Licensed Software on Customer Computers in executable code form for internal use by you (and where permitted in the Order Form, your Authorised Affiliates) solely for the Permitted Use.

1.2 Your Responsibility. You will: (i) control access to and use of the Licensed Software by your Users and shall be responsible for any use of the Licensed Software by your Users that does not comply with the Agreement; (ii) retain the Licensed Software and all copies thereof under your effective operational control; (iii) take appropriate precautions against the possibility that the Licensed Software or any part thereof does not function properly (including, without limitation, by performing data back-ups, error diagnosis and regular monitoring); (iv) be responsible for, and ensure you have the right to enter, the data and other content into the Licensed Software; (v) where applicable, be responsible for renewing your license entitlement at the required frequency as notified to you by us; and (vi) as between the Parties, be solely responsible for all technical, administrative and organizational measures related to the security and integrity of the Operating Platform.

2. Restrictions on Licensed Software Use

The following restrictions apply to the license granted under clause 1.1 above (“License Restrictions”):

2.1 Your Use Only. You will not, and will not permit any third party to, display, sell, rent, lease, license, sublicense, loan, lend, assign, publish, transfer, distribute or otherwise make available to any third party (including any Affiliates, except Authorised Affiliates) all or any portion of the Licensed Software or any features or functionality of the Licensed Software and/or Documentation in any form or media or by any means or 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), time-sharing, service bureau, software as a service, cloud, or other technology or service. You will not allow installation of the Licensed Software on any computer other than a Customer Computer and you shall remain responsible for any Computer Providers you appoint. You must promptly notify us of any suspected unauthorised use or disclosure of the Licensed Software (including use outside of the Permitted Use). Upon our reasonable request and no more than annually, one of your officers or senior vice presidents will certify in writing that your use of the Licensed Software is in compliance with the Usage Metric Limitations and the License Restrictions.

2.2 Modifications of Licensed Software. In respect of the Licensed Software, you will not, and will not permit any third party to: (i) alter, modify, frame or mirror the whole or any part of the Licensed Software in any way whatsoever; (ii) disassemble, decompile, reverse engineer, unobfuscate or reduce any part of the Licensed Software to human-readable form (except as required by Applicable Law to the extent necessary to ensure the interoperability of the Licensed Software, subject to your obligations of confidentiality under the Agreement and to you having provided us with reasonable advance written notice of such intended activity and the opportunity to assist with or conduct such activity on your behalf and at your expense); (iii) combine or link the Licensed Software with Copyleft Materials; (iv) other than as expressly permitted by the Agreement, attempt to gain access to, discover or recreate the source code (from the object code or via any other means); (v) create any derivative works of the Licensed Software (in whole or in part); (vi) send or store Malicious Code; (vii) use or permit others to use the Licensed Software in violation of Applicable Law; (viii) transmit or generate any content or data that is unlawful or infringes any Intellectual Property Rights or use the Licensed Software for any unlawful purpose; (ix) work around any technical limitations in the Licensed Software or restrictions in the Documentation; (x) 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 the Agreement, in which event such restrictions will not apply to such Third Party Software); or (xi) use the Licensed Software (or any part of it), Supplier’s Confidential Information or any Supplier 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 Supplier Intellectual Property Rights.

2.3 Copyright and Other Ownership Notices. You will not remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other Intellectual Property Rights or proprietary markings or rights notices provided on or with the Licensed Software or Documentation.

2.4 Use of Virtualization Software. You may run the Licensed Software on a virtualization platform subject to any Usage Metric Limitations.

2.5 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 and Usage Metric Limitations. You must promptly provide any information and documents that we reasonably request related to the verification. If there is a material discrepancy showing that you have not complied with the License Restrictions or Usage Metric Limitations, or you do not reasonably cooperate with such audit, you agree to allow us and/or our appointed accountancy or consultancy firm (“Auditors”) to audit pertinent records 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 Customer Computers) for the purpose of conducting inspections of Customer Computers and of your use of the Licensed Software in order to confirm your compliance with the License Restrictions and Usage Metric Limitations, 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 Metrics 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).

3. Warranty

3.1 Licensed Software Warranty. We warrant to you that: (i) the Licensed Software will, when 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”); and (ii) we will use commercially reasonable efforts to verify, using industry standard tooling and methodology, that the Licensed Software and any Version thereof does not contain any Malicious Code on delivery to you. WE DO NOT WARRANT AND WE DISCLAIM ANY IMPLIED WARRANTY THAT THE OPERATION OF ANY LICENSED SOFTWARE WILL BE ERROR FREE OR UNINTERRUPTED OR THAT SUCH LICENSED SOFTWARE WILL ACHIEVE ANY INTENDED RESULT OR THAT IT WILL BE COMPATIBLE, WORK WITH OR CONTINUE TO WORK WITH ANY THIRD PARTY SOFTWARE, OPERATING PLATFORM 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.

3.2 Remedy. If during the Warranty Period the Licensed Software does not perform as warranted in clause 3.1(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, either Party may terminate the Agreement and we will refund you a pro-rata amount for the Fees paid hereunder for the applicable Licensed Software for any remaining period of the Subscription Term. THE FOREGOING ARE YOUR SOLE AND EXCLUSIVE REMEDIES FOR BREACH OF THIS WARRANTY.