Terms and Conditions

1.1 Products and Services. These General Terms and Conditions apply to all Products and Services that we make available to you pursuant to an Order Form, including Licensed Software, Hosted Services, and/or Licensed Data. Your rights to use or access the applicable Products and Services are set forth in the Order Form and Product Terms identified in such Order Form applicable to such Products and Services. See below for definition of certain capitalized terms.

1.2 Software Support Services. Where the Order Form includes Software Support Services, we will provide them for the Subscription Term of the applicable Products and Services, at the support level stated in the Order Form and in accordance with the Software Support Terms identified in the Order Form.

2. Intellectual Property Rights

2.1 Intellectual Property Rights. We are the 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.

2.2 Assignment. Where any Intellectual Property Rights do not vest automatically in us under clause 2.1, you hereby assign free of charge, all of your right, title and interest in such Feedback and other items described in clause 2.1 upon their creation to us.

2.3 Disclaimer. You disclaim all right, title, and interest in the Supplier Intellectual Property Rights and Feedback. You irrevocably waive, to the extent permitted by Applicable Law, any and all claims you or your Authorised Affiliates, Employees and Contractors (and their employees) 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 Supplier Intellectual Property Rights.

2.4 Rights to Third-Party Products. You represent that you have, and undertake to maintain during the Subscription Term, a valid license to use any third-party software and/or data used by you in connection with the Products and Services.

3. Payment

3.1 Fees. We shall invoice you for and you shall pay Fees due in accordance with the payment schedule set out in the relevant Order Form.

3.2 Taxes. Fees and other charges imposed under the Agreement shall not include Taxes, all of which will be your responsibility. You agree to pay or reimburse us for all Taxes.

3.3 Overdue Amounts. Late payments will incur interest 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.

3.4 Set Off. You will not withhold, reduce or set-off any Fees owed.

3.5 Non-Cancellable. Except as expressly provided in the Agreement, each Order Form is non-cancellable and Fees paid are non-refundable.

3.6 Usage and Additional Fees. Your use of the Products and Services is subject to the Usage Metric Limitations set out in the Order Form. You will maintain complete and accurate records of your usage. Use that exceeds the Usage Metric Limitations is subject to additional Fees at the rates set out in the Order Form (or, where none are set out, our then-current rates) and, where applicable, to the Software Usage Terms. You may not reduce your Usage Metric Limitations during the Initial Subscription Term, and may reduce them for a Renewal Subscription Term only as agreed in writing.

3.7 Renewal. Unless the Order Form states otherwise, on expiry of the Initial Subscription Term and of each Renewal Subscription Term, the Subscription Term renews automatically for a Renewal Subscription Term of twelve (12) months unless either Party gives the other written notice of non-renewal not less than sixty (60) days before the end of the then-current Subscription Term.

3.8 Fee Increases. Unless the Order Form states otherwise, we may increase the Fees (including the rates for use exceeding the Usage Metric Limitations) at the start of each annual period after the Initial Subscription Term, by no more than five percent (5%) of the Fees for the previous annual period. If we do not increase the Fees this is not deemed to be a waiver of our right to do so at a subsequent commencement of a Renewal Subscription Term.

4. Confidential Information

4.1 Non-Disclosure. Each Party agrees that during the Subscription Term 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 the 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 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.

4.2 Exceptions. The restrictions in clause 4.1 will not apply to information that: (i) the receiving Party can demonstrate was known to the receiving Party and not subject to a duty of confidentiality (whether contractual or otherwise) to the disclosing 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, provided the receiving Party was not informed and was not aware that such third party was subject to a duty of confidentiality (whether contractual or otherwise) to the disclosing Party; (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; or (vi) is required by Applicable Law to be disclosed, provided that if a Party is required to disclose the other Party’s Confidential Information pursuant to Applicable Law, that Party will, to the extent permitted, 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.

4.3 Disclosure of Agreement Terms. Each Party agrees not to publicize or disclose the Agreement terms (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.

4.4 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 Party.

4.5 Benchmark Test Results. You will not disclose any benchmark, test or performance information or any report which contains a competitive analysis regarding the Products and Services to any third party except as explicitly authorized in advance by us in writing.

5. Warranties, Disclaimer and Limitation of Liability

5.1 EXCLUDED CLAIMS. THE LIMITATIONS SET OUT IN CLAUSES 5.2 AND 5.3 SHALL NOT APPLY TO CLAIMS THAT ARE NOT EXCLUDABLE UNDER APPLICABLE LAW (FOR EXAMPLE IF YOU ARE DOMICILED IN NEW YORK, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT) OR THAT ARE RESULTING FROM OR ARISING IN CONNECTION WITH: (A) A PARTY’S INDEMNIFICATION OBLIGATIONS SET OUT IN THE AGREEMENT; (B) FRAUD; (C) DEATH OR BODILY INJURY ARISING FROM A PARTY’S NEGLIGENCE; OR (D) ANY VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS (COLLECTIVELY “EXCLUDED CLAIMS”).

5.2 EXCLUSION OF DAMAGES. EXCEPT FOR EXCLUDED CLAIMS, IN NO EVENT SHALL EITHER PARTY OR ITS AFFILIATES[, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND REPRESENTATIVES,] BE LIABLE FOR LOSS OF USE, CORRUPTION OF SOFTWARE, LOSS OR DAMAGE TO OR CORRUPTION OF DATA, LOSS OF OR DAMAGE TO GOODWILL, INTERRUPTION OF BUSINESS, LOSS OF PROFITS, LOSS OF SALES OR REVENUE, LOSS OF ANTICIPATED SAVINGS, WASTED EXPENDITURE (INCLUDING PROCUREMENT COSTS AND MANAGEMENT TIME) (IN EACH CASE, WHETHER SUCH LOSS OR DAMAGE IS DIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, OR INDIRECT) OR ANY OTHER CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, OR INDIRECT DAMAGES OF ANY KIND UNDER ANY ACTION 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 SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

5.3 LIABILITY CAP. SUBJECT TO CLAUSES 5.1 AND 5.2, THE AGGREGATE LIABILITY OF A PARTY[, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND REPRESENTATIVES,] ARISING UNDER OR IN CONNECTION WITH THE AGREEMENT, WHETHER IN AN ACTION IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), FOR BREACH OF STATUTORY DUTY, WARRANTY, STRICT LIABILITY, PRODUCT LIABILITY, OR ANY OTHER FORM OF ACTION, SHALL BE LIMITED TO AN AMOUNT NOT EXCEEDING: (I) IN THE CASE OF A BREACH OF CLAUSE 4 OR CLAUSE 9.17 BY EITHER PARTY, 200% OF THE TOTAL FEES PAID OR PAYABLE UNDER THE APPLICABLE ORDER FORM GIVING RISE TO THE CLAIM IN THE 12 MONTHS IMMEDIATELY PRIOR TO THE FIRST 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 FIRST EVENT GIVING RISE TO SUCH LIABILITY (“GENERAL CAP”). SUCH LIABILITY CAPS SHALL BE EXCLUSIVE OF ANY UNPAID FEES OWING BY YOU TO US.

5.4 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.

5.5 RESPONSIBILITY. You are responsible for selecting the Products and Services and for how you use them. The Products and Services have not been developed to meet your individual requirements. You are solely responsible for actions and decisions that you or others take based on your use of the Products and Services or their output. THE PRODUCTS AND SERVICES DO NOT CONSTITUTE INVESTMENT, LEGAL OR REGULATORY ADVICE AND SHALL NOT SERVE AS THE PRIMARY BASIS FOR ANY INVESTMENT DECISION OR REGULATORY COMPLIANCE DETERMINATION MADE BY OR ON BEHALF OF YOU. WE ARE NOT LIABLE FOR RESULTS OR OUTPUT [TO THE EXTENT THEY ARISE FROM: (I) YOUR DATA, INPUTS, QUERIES OR CONFIGURATION; (II) THIRD-PARTY DATA, SOFTWARE OR AI TOOLS; OR (III) USE OTHER THAN IN ACCORDANCE WITH THE DOCUMENTATION.

5.6 AUTHORITY. Each Party warrants that it has the legal power and authority to enter into the Agreement.

5.7 DISCLAIMER. OTHER THAN THE WARRANTIES EXPRESSLY STATED IN THE AGREEMENT, NO EXPRESS OR IMPLIED WARRANTIES OR OTHER COMMITMENTS APPLY TO THE PRODUCTS AND SERVICES, WHICH ARE OTHERWISE 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.

6. Indemnification

6.1 Indemnification by us. Subject to the remainder of this clause 6, 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 an Authorised Affiliate or agreed in settlement by us in respect of the Infringement Claim.

6.2 Our 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 Products and Services may be liable to an Infringement Claim, we may, at our own expense and option: (i) procure for you the right to continue to use the Products and Services; (ii) replace (within a reasonable period of time) the infringing components of the Products and Services 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 Products and Services (within a reasonable period of time) so that they are 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: (i) as provided in clause 6.1 above; and (ii) we shall refund you a pro-rata amount of any pre-paid Fees for the duration of any pre-paid subscription period for which you are unable to use the Products and Services. This clause 6 states our entire liability to you in respect of the Infringement Claim.

6.3 Limitation on our indemnity. Notwithstanding the provisions of clause 6.1, 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 Products and Services with any third party software or hardware products not approved by us or stated as compatible with the Products and Services in the Documentation; (ii) connections or integrations of the Products and Services with any of your products or any of your components, whether enabled through APIs, third party software or otherwise; (iii) modifications to the Products and Services made by any party other than us or which are not made under our direction; (iv) use of an unsupported Version of the Products and Services; (v) trademark 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 wilful infringement.

6.4 Indemnification by you. Subject to clause 6.5, 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 our reasonable attorney’s fees) arising out of a third party claim, suit and/or proceeding brought against us or any of our Affiliates alleging that our use of data and other content provided by you infringes any Intellectual Property Rights of a third party.

6.5 Indemnity Procedure. Each Party’s indemnification obligations (the “Indemnifying Party”) under this clause 6 are conditional upon compliance with the following obligations of the Party seeking indemnification hereunder (the “Indemnified Party”). Indemnified Party will: (i) 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 clause 6 except to the extent that such failure disadvantages the Indemnifying Party; (ii) not make any admission of liability, agreement, settlement or compromise in relation to such claim without the Indemnifying Party’s prior written consent or otherwise prejudice Indemnifying Party’s defense of such claim; (iii) provide reasonable cooperation and assistance to the Indemnifying Party at the Indemnifying Party’s cost and request in connection with such defense; and (iv) give the Indemnifying Party sole control over and authority to avoid, dispute, settle or defend such 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.

6.6 Mitigation. Each Party will use reasonable endeavours to avoid or mitigate any loss it may suffer or incur as a result of an event that may give rise to a claim under this clause 6.

7. Suspension, Termination

7.1 Termination for Cause. Either Party may terminate the 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 the Agreement and fails to cure such breach (where curable) within thirty (30) days after receiving written notice of such breach; (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) 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 and/or the applicable Order Form and/or any Products and Services (including your ability to use, access and/or renew your license or License Keys) immediately on written notice to you if: (i) you become more than 120 days delinquent on your Fee payment; (ii) you breach the License Restrictions or the restrictions in the applicable Product Terms; or (iii) 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 of incorporation 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.

7.2 Termination for Convenience. You may terminate the Agreement or an Order Form for convenience at any time during the Subscription Term upon giving us at least thirty (30) days’ prior written notice provided that where you terminate for convenience or we terminate for cause pursuant to clause 7.1 (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 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.

7.3 Effect of Termination. Upon termination of the Agreement and/or the applicable Order Form (or expiry or termination of the Subscription Term) all rights granted in the Agreement shall cease and you will make no further use of any Products and Services or Documentation which has been the subject of termination. Within five (5) Business Days after such termination of the Agreement and/or applicable Order Form or termination or expiry of a Subscription Term for the applicable Products and Services, you will either destroy or return to us the originals and all copies of the Products and Services and Documentation in your possession or under your control and you will certify to us in writing signed by your officer or senior vice president your compliance with these requirements. In addition, you will immediately cease to use all of our trademarks, titles, copyright symbols and legends and, at our election, destroy or deliver to us all materials in your control or possession which bear such trademarks, titles, copyright symbols and legends. Where the Order Form includes Hosted Services, your access to the Hosted Services ends on termination or expiry.

8. 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 clauses 2, 3, 4, 5, 6, 7.3, 8 and 9 of these General Terms and Conditions (inclusive), together with any provision of the Product Terms that is expressed to survive (including clauses 2.2 and 2.5 of the On-Premise Licensed Software Terms and clauses 6 and 7 of the Hosted Services Terms), shall survive the termination of the Agreement or the applicable Order Form for any reason. All other rights and obligations of the Parties shall cease upon termination of the Agreement or the applicable Order Form.

9. Additional Provisions

9.1 Independent Contractors. The Parties are independent contractors. Nothing contained herein or done pursuant to the 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 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.

9.2 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) shall 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 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 of the courts set out below. Each Party hereby waives any disputes it may have with respect to proper venue.

Customer’s Domicile (registered address as stated on the Order Form)	Governing Law	Venue (courts with exclusive jurisdiction)
Americas, Canada, Middle East and 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

9.3 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 either Party’s breach of clause 4, 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 reasonable 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 thirty (30) days, if no agreement has been reached between the Parties to resolve the dispute, either Party is free to initiate proceedings.

9.4 Commercial Computer Software. The Products and 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 Products and 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 Products and Services (including all components) is an agreement by the U.S. Government that the Products 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.

9.5 Notices. All notices made pursuant to the Agreement must be made in writing. Any written notice to be given or made pursuant to the provisions of the Agreement shall be sent postage prepaid by registered or recorded mail or reputable courier service, or by email to an address that the recipient has designated in writing for legal notices, 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 us, with a copy by email to KXLegal@kx.com) and shall be marked for the attention of “The General Counsel”. Unless otherwise provided in the Agreement, all notices shall be deemed received two (2) Business Days after dispatch by courier, five (5) [Business Days] from proof of postage by registered or recorded mail, or on the next Business Day after sending by email to a designated address in accordance with this clause. Notices relating to the operation of the Products and Services or other routine administrative matters may be given by email, provided that notices relating to termination, breach or other legal matters must be given in accordance with this clause.

9.6 Assignment, Successors and Subcontractors. 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 Authorised Affiliates for the purposes of internal reorganisation or to a successor to 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 upon written notice to us 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 of our rights and obligations under the Agreement to any of our Affiliates for the purposes of internal reorganization or to a successor to our business in the event of the merger or the sale of our business (including a change of control) or all or substantially all of our assets to a third party 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 Products and Services to third parties or Affiliates (“Subcontractors”) and/or use Affiliates to perform the Products and Services provided that we have a written agreement with them that contains industry standard confidentiality obligations and we remain responsible for breaches of the Agreement caused by our Subcontractors and subject to the Data Processing Agreement referred to in clause 9.17 below.

9.7 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 Products and 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 Products and Services on immediate written notice to you if we are not permitted to deliver such Products and Services or to grant you access to the Products and Services due to an embargo, trade sanction or other comparable restrictive measure.

9.8 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, 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.

9.9 Entire Agreement and Amendment. Each Party acknowledges that in entering into the Agreement it does not rely on any statement, representation, assurance, or warranty (whether made innocently or negligently) that is not set out in the Agreement. Each Party agrees that the remedies for any claim for innocent or negligent misrepresentation based on any statement in this Agreement shall be limited to the remedies available for breach of contract. The Agreement may be amended or modified only in a written document (which may include the Order Form) and signed by authorized representatives of each Party.

9.10 Severability. 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 Applicable 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.

9.11 Equitable Relief. Each Party agrees that a breach or threatened breach by such Party of any of its obligations under clause 4 or, any unauthorized use by you of the Products and Services or any Supplier Intellectual Property Rights, may 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.

9.12 Third Party Rights. No person other than the Parties to the Agreement 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.

9.13 Usage by Affiliates. Where the Order Form provides for usage of the Products and Services by Authorised Affiliates, such usage shall be restricted to the Authorised Affiliates listed on the Order Form. You will be responsible and liable 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 Authorised Affiliates. You agree 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 and treated as a breach by you. The rights of your Authorised Affiliates with respect to the Products and Services will be no greater than your rights, and the obligations of your Authorised Affiliates with respect to the Products and Services will be no less than your obligations. You will take all such steps as are necessary to ensure that your Authorised Affiliates comply with the terms and conditions of the Agreement to the same extent as you are obligated to comply with its terms and conditions.

9.14 Trade Control and Export Restrictions. You acknowledge that the Products and Services (including their related technical data and services) may be deemed dual use and 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 not to, directly or indirectly, export, re-export, transfer, provide, or permit access to, the Products and Services to any user located in any country or region: (a) that is subject to comprehensive US, UN, EU, UK or Organisation for Security and Cooperation in Europe (“OSCE”) trade sanctions or embargo; or (b) where the deployment, delivery, or provision of support for the Products and Services would violate applicable Trade Control Laws or any other export control, import control, or similar governmental law or regulation, or would require us to obtain any governmental license, consent, or authorization not already held by us. You agree to fully comply with the Trade Control Laws in connection with the Products and Services including where applicable assisting in obtaining any necessary governmental approvals, licenses and undertakings. You will not, and will not allow any third party, to, directly or indirectly, use, export, re-export, transfer, provide or permit access to the Products and Services in violation of any Trade Control Laws or to a destination subject to US, UN, EU, UK or OSCE embargo, or to any Individual or entity listed on any applicable sanctions or restricted party list maintained by a relevant governmental authority. A statement on the export controls applicable to the Products and Services is available at the following website: Export Statement – KX. Any dispute in relation to this clause 9.14 shall be governed in accordance with clause 9.2 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 Products and Services, or perform support or services, due to an embargo, trade sanction or other comparable restrictive measure.

9.15 Compliance with laws and Anti-Bribery. We will perform our obligations under this Agreement in compliance with our obligations under Applicable Laws, without regard to your specific use of the Products and Services. You will use the Products and Services in compliance with your obligations under Applicable Laws. Without limiting the previous sentence, each Party will comply with its obligations under Applicable Laws relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 and the US Foreign Corrupt Practices Act 1977.

9.16 Order of Precedence. 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 you.

9.17 Data Protection. Each Party shall comply with the Data Protection Laws that apply to it in relation to personal data processed under the Agreement. Where Licensed Software is installed on Customer Computers, we do not host or access your data. You are the controller of any personal data that you process using the Licensed Software and you are responsible for it. Where we process personal data on your behalf (including in providing Hosted Services, Software Support Services or Professional Services), we do so as your processor and the Data Processing Agreement (or a data processing agreement signed by the Parties) applies and forms part of the Agreement. You shall not provide us with personal data beyond what is needed for the Products and Services. Where you do provide personal data, you warrant that you: (i) have the right to do so; and (ii) will maintain throughout the Subscription Term all necessary rights and permissions (including a lawful basis of processing under Data Protection Laws) to permit us to process and transfer the personal data for the purpose of performing our obligations under the Agreement. Nothing in the Agreement excludes or limits either Party’s liability to the extent that Data Protection Laws do not permit it.

9.18 Evaluation and Temporary Licenses. From time to time, we may offer additional copies of our proprietary software products to you on a temporary basis for reasonable amounts of usage for evaluation and trial use (collectively, “Evaluation Products”) or alpha/ beta/preview features of Products and Services (identified as such) which are not yet available on general release (“Beta Features”). Your use of Evaluation Products and Beta Features is subject to any additional terms that we specify and is only permitted during the period which we designate (or, if not designated, until terminated in accordance with the Agreement). In addition, from time to time, we may provide you with additional copies of our proprietary software products or increase your Usage Metrics for the Products and Services on a temporary basis. Your use of such additional products or increased Usage Metrics is only permitted during the period which we designate (or, if not designated, until terminated in accordance with the Agreement). Beta Features may or may not be included, and/or may be changed, in any general release version of the Products and Services, at our entire discretion. EXCEPT AS OTHERWISE SET FORTH IN THIS CLAUSE OR AS OTHERWISE AGREED WITH YOU 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, (I) THE SOFTWARE SUPPORT SERVICES SHALL NOT APPLY TO ANY EVALUATION PRODUCTS OR BETA FEATURES; (II) YOU WILL NOT USE ANY EVALUATION PRODUCTS OR BETA FEATURES IN PRODUCTION OR ANY BUSINESS CRITICAL SETTING; AND (III) OUR LIABILITY RELATING TO EVALUATION PRODUCTS, BETA FEATURES OR SOFTWARE PROVIDED ON A TEMPORARY BASIS FREE OF CHARGE, INCLUDING ANY SERVICES PROVIDED DURING AN EVALUATION PERIOD, WILL BE LIMITED TO FIVE THOUSAND US DOLLARS (US$5,000) (OR THE EQUIVALENT IN THE CURRENCY OF THE ORDER FORM).

9.19 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 you or any third party, any Intellectual Property Rights or other right, title, or interest in or to the Products and Services or Documentation.

9.20 Counterparts and Signature. The Agreement may be executed in any number of counterparts, each of which when executed shall constitute an original of the Agreement, but all the counterparts shall together constitute the one agreement. Transmission of an executed counterpart of a signature page to an Order Form by email of a scanned copy, or execution and delivery through an electronic signature service (such as DocuSign), shall be effective as transmission of an executed “wet ink” counterpart.

Definitions

The following definitions apply to these General Terms and Conditions and the Product Terms referenced in an Order Form:

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.
Agreement	has the meaning ascribed to it in the Order Form.
Ancillary Tools	has the meaning ascribed to it in clause 5.4 of the Professional Services Terms (if applicable).
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 thereof) that allows other software to communicate with or call on the Products and Services, including any access code, authentication keys or similar mechanisms to enable access of the APIs.
Applicable Laws	means local, foreign and international laws, rules, regulations, orders, directives, and other similar instruments including interpretations with the force of law or the listing rules of a recognized stock exchange that apply to the performance of the applicable Party hereunder.
Artificial Intelligence (AI)	means any computer systems capable of performing complex tasks that typically require human intelligence, such as reasoning, learning, problem-solving, perception, and decision-making, including without limitation machine learning and deep learning.
Auditors	has the meaning ascribed to it in clause 2.5 of the On-Premise Licensed Software Terms.
Authorised Affiliate	means those Affiliates listed in the Order Form which are in existence at the date of the Order Form or subsequently agreed to in writing by us who are permitted to access and use the Products and Services in accordance with the Agreement.
Authorised Representative	has the meaning ascribed to it in the Software Support Terms.
Business Days	means Monday to Friday excluding public holidays in the jurisdiction stated for that purpose in the Order Form or, if none is stated, the jurisdiction from which the applicable Products and Services are provided; for Software Support Services, Business Days has the meaning given in the Software Support Terms.
Business Hours	means the period from 9.00 am to 5.00 pm on any Business Day.
Computer Provider	means the provider of the Customer 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.
Confidential Information	means: (i) 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 business person under the circumstances of disclosure; and (b) the Licensed Software, Documentation and other Supplier Materials.
Consulting Services	means certain implementation, training, consulting, design and development services as further detailed in the relevant Service Pack set out on the Order Form or otherwise in a Statement of Work.
Contractor	means an independent contractor to you that has entered into a written agreement with you that obligates the Contractor 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.
Customer Computer	means, except as defined otherwise on the Order Form, on-premise computers or compute locations (being AWS, GCP or Azure, unless otherwise agreed in the Order Form) under your (or, where permitted in the Order Form, your Authorised Affiliates’) exclusive operational control or under the control of a Computer Provider with access controlled to ensure that only your (and, where applicable, your Authorised Affiliates’) Employees or Contractors are able to access and use the Licensed Software.
Data Protection Laws	means all laws that apply to a Party’s processing of personal data under the Agreement, including: (a) Regulation (EU) 2016/679 (the “GDPR”); (b) the GDPR as it forms part of the law of the United Kingdom under the European Union (Withdrawal) Act 2018 (the “UK GDPR”), the Data Protection Act 2018 and the Data (Use and Access) Act 2025; (c) the Privacy and Electronic Communications (EC Directive) Regulations 2003 and Directive 2002/58/EC as implemented in each EU member state; (d) United States federal and state privacy and data security laws that apply, including the California Consumer Privacy Act; and (e) any law that supplements, amends or replaces any of them; in each case as in force from time to time. “Personal data”, “processing”, “data subject”, “controller” and “processor” have the meanings given in the applicable Data Protection Laws and include their equivalents under those laws (such as “personal information”, “business” and “service provider”).
Documentation	means our then-current technical and functional documentation for the applicable Products and Services, as made available at the documentation site we identify for that product (for KX products currently https://code.kx.com/home/) or otherwise delivered to you in eye-readable form, as we update it from time to time.
Effective Date	means, for each Order Form, the date stated as such in the Order Form or, if none is stated, the date on which we first make the applicable Products and Services (or the License Key for them) available to you.
Employee	means any of your regular employees or workers who has entered into a written employment or similar agreement with you that obligates them to industry standard confidentiality obligations.
Error	has the meaning ascribed to it in the Software Support Terms.
Error Correction	has the meaning ascribed to it in the Software Support Terms.
Feedback	means bug reports, input, comments or suggestions from you, provided on a voluntary basis and without warranty, regarding our technology and/or the possible creation, modification, correction, improvement or enhancement of our software, products and/or services whether or not marked or designated by you as confidential, exclusive of your Confidential Information.
Fees	means the fees detailed in the Order Form (or otherwise chargeable in accordance with the Agreement).
Hosted Services	means the software and services that we make available to you for remote access in a hosted environment, as identified in the Order Form and subject to the Hosted Services Terms. The Hosted Services do not include New Products.
Individual	means a human being.
Infringement Claim	means third party claims, suits and/or proceedings brought against you or any of your Authorised Affiliates alleging that your or your Authorised Affiliates’ use of the Products and Services as permitted under the Agreement infringes any Intellectual Property Rights of a third party, excluding, however, any claims that allege patent infringement unless the patent is duly issued, granted or registered in the United States, United Kingdom, Canada or any member states of the European Union.
Initial Subscription Term	means the term detailed in the Order Form in relation to the initial license duration of any Products and Services.
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, 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 of a similar nature or having similar or equivalent effect to any of them which subsist or will subsist, now or in the future, in any part of the world.
License Restrictions	means those restrictions relating to the use of the Licensed Software set out in clause 2 of the On-Premise Licensed Software Terms and, for Hosted Services, clause 2 of the Hosted Services Terms.
Licensed Data	means the data and data services identified in the Order Form and subject to the Data Terms. The Licensed Data does not include New Products.
Licensed Software	means the software listed on the Order Form and subject to the On-premise Licensed Software Terms, in its compiled code form or if we provide any elements in source, in source code form, and all Versions, updates, enhancements and fixes provided by us to you pursuant to the Agreement (including as part of the Software Support Services) and the License Keys therefor. The Licensed Software does not include New Products.
License Key	means a confidential security code or electronic file provided by us that enables the Licensed Software to be used by you on the Customer Computer.
Malicious Code	means any software, script, code, file, program, or other harmful or unwanted computer instructions that are designed to infiltrate, disrupt, damage, or gain unauthorized access to computer systems, networks, data, or software. This includes, but is not limited to, viruses, worms, spyware, adware, ransomware, Trojan horses, logic bombs, or any other similar malicious programs or code designed to impair the functionality, security, or performance of software, hardware, or data.
Managed Services	means certain managed services identified as applicable in an Order Form.
New Product	means our or any of our Affiliates’ product that either: (i) provides significantly different or added functionality from the Products and Services; or (ii) is of significantly different design than the Products and Services even if the new product includes some of the functionality of the Products and Services (in whole or in part).
Operating Platform	means the operating system software as stated in the Documentation.
Order Form	means the document agreed and executed between the Parties, which sets out the Products and Services to be provided by us to you and confirms the applicable terms and documents which will then form part of the Agreement in relation thereto.
Parties	means you and us and “Party” means you or us.
Permitted Use	has the meaning ascribed to it 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.
Pre-Existing Materials	has the meaning ascribed to it in clause 5.1 of the Professional Services Terms.
Product Terms	means the On-Premise Licensed Software Terms, the Hosted Services Terms, the Data Terms and the Professional Services Terms, in each case as identified in the Order Form as applying to the Products and Services ordered.
Products and Services	means, collectively, any Licensed Software, Hosted Services, Licensed Data, Professional Services, and any other products or services identified in an Order Form.
Professional Services	means any Consulting Services and/or Managed Services to be provided by us as set out in the Order Form, and subject to the provisions of the Professional Services Terms and, in the case of the Managed Services, the Managed Services Terms.
Renewal Subscription Term	means, in respect of any Products and Services 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 Professional Services.
Service Pack	has the meaning ascribed to it in clause 2 of the Professional Services Terms.
Software Support Services	means the software-related support services to be provided by us as set out in the Order Form, and subject to the provisions of the Software Support Terms.
Statement of Work	has the meaning ascribed to it in clause 2 of the Professional Services Terms.
Subscription Term	means the term of a subscription for Products and Services identified in the applicable Order Form, including the Initial Subscription Term and all Renewal Subscription Terms.
Supplier Intellectual Property Rights	means the Intellectual Property Rights in: (i) the Products and Services 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 or any Managed 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 our or our Affiliates’ property.
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 our net income and on the payment of our employees’ salaries).
Third Party Software	means third party software or third party open source software or components which are included with the Licensed Software.
Trade Control Laws	has the meaning ascribed to it in clause 9.14.
Usage Report	means the definition provided in the Software Usage Terms.
Usage Metric	means the standard of measurement for calculating the fees due for the applicable Products and Services as set forth in the Order Form.
Usage Metric Limitations	means the limitations on use of the Products and Services specified in the Order Form.
User	means an identifiable Individual, not necessarily named at the time of a license grant, designated by you as a user of the Products and Services, regardless of whether or not the Individual is actively using the Products and Services at any given time. An Individual shall only be designated as a User on the earlier of: (i) the date they are authorized by you to access the Products and Services; and (ii) the date they first use the Products and Services.
Version	has the meaning ascribed to it in the Software Support Terms.
Warranty Period	has the meaning ascribed to it in clause 3.1 of the On-Premise Licensed Software Terms.

Rules of Interpretation

In the Agreement, unless otherwise stated:

1. the clause, section, paragraph, schedule and other headings in the Agreement are included for convenience only and shall 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 shall be construed as illustrative only and shall 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.