This Agreement was last updated on 12 September 2023. It is effective between you and KX Systems, Inc (“Us”, “We”) as of the date of you accept this Agreement. You agree to use the Services subject to the terms and conditions set forth below. Capitalized Terms are defined in the Appendix to this Agreement.
1. SERVICES; ACCESS AND USE
- Services. Subject to the terms and conditions of this Agreement, we hereby grant you a limited, non-exclusive, non-transferable non-sublicensable right to Use the Services during the Term in accordance with, and subject to, the Licensed Volume.
- Use restrictions. You and your use of the Services must comply at all times with this Agreement, the Acceptable Use Policy and all applicable laws. You will not: (i) use the Services in any manner beyond the scope of rights expressly granted in this Agreement; (ii) reverse engineer, disassemble, decompile, decode or otherwise modify or create derivative works of the Services or Documentation, in whole or in part; (iii) frame, mirror, sell, resell, rent, sublicense, transfer, assign, distribute or lease the Services or otherwise allow any Person to use the Services for any purpose; (iv) interfere with, or disrupt the integrity or performance of, the Services, or any data or content contained therein or transmitted thereby; or (v) use the Services, Documentation or any of our other Confidential Information for benchmarking or competitive analysis with respect to competitive or related products or services, or to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the Services.
- Log-Ins. Your account for the Services may only be accessed and used by you and you will not share your login or password details for the Service or any related access keys provided to you with any other Person. You will use all reasonable means to secure user names and passwords, access keys, hardware and software used to access the Services in accordance with customary security protocols, and will promptly notify us if you know or reasonably suspect that your user name, password and/or access key has been compromised.
- Third-Party Services. Certain features and functionalities within the Services may allow you to interface or interact with, access and/or use compatible third-party services, products, technology and content (collectively, “Third-Party Services”) through the Services. We do not provide any aspect of the Third-Party Services and are not responsible for any compatibility issues, errors or bugs in the Services or Third-Party Services caused in whole or in part by the Third-Party Services or any update or upgrade thereto. You are solely responsible for maintaining the Third-Party Services and obtaining any associated licenses and consents necessary for you to use the Third-Party Services in connection with the Services.
- Reservation of Rights. Subject to the limited rights expressly granted hereunder, we reserve and, as between the Parties we will solely own, the KX IP and all rights, title and interest in and to the KX IP. No rights are granted to you hereunder (whether by implication, estoppel, exhaustion or otherwise) other than as expressly set forth herein.
- Feedback. You may provide us with suggestions, comments, feedback or the like with regard to the Services (collectively, “Feedback”). We may use your Feedback freely to improve the Services or any of our other products or services, and accordingly you hereby grant us a perpetual, irrevocable, non-exclusive, worldwide, fully-paid, sub-licensable, assignable license to incorporate into the Services or otherwise use any Feedback we receive from you.
2. CONFIDENTIAL INFORMATION
Each party agrees that during the term of this Agreement and for a period of five (5) years thereafter, it will treat as confidential all Confidential Information of the other party, will not use such Confidential Information except as expressly set forth herein or otherwise authorized in writing, will implement reasonable procedures to prohibit the disclosure, duplication, misuse or removal of the other party’s Confidential Information and will not disclose such Confidential Information to any third party except as may be necessary and required in connection with the rights and obligations of such party under this Agreement, and subject to confidentiality obligations at least as protective as those set forth herein. Without limiting the foregoing, each party will use at least the same procedures and degree of care that it uses to prevent the disclosure of its own confidential information of like importance to prevent the disclosure of Confidential Information disclosed to it by the other party under this Agreement, but in no event less than reasonable care. Nothing in this clause 2 shall prevent us from using Confidential Information in deidentified form for purposes of developing and deriving Aggregate Data.
We may in our discretion provide you support and answer your questions in relation to your Use of the Services but we are not obligated to do so. We do not make any commitment as to availability or uptime of the Services or that the operation of the Services will be uninterrupted or error free.
4. END USER MATERIALS AND DATA
- We acknowledge that, as between us and except as set forth in Section 4(b), you own and retain all right, title and interest in and to all End User Materials.
- You hereby grant us a non-exclusive, worldwide, royalty-free right and license to use, host, reproduce, display, perform, modify the End User Materials solely for the purpose of hosting, operating, improving and providing the Services and our other related products, services and technologies.
- We will retain your End User Materials for a period of 30 days from when you last accessed your account, and for 30 days after termination of this Agreement.
- We may monitor your use of the Services and collect and compile data and information that is used by us in an aggregate and de-identified manner, including but not limited to, (i) compiling statistical and performance information related to the provision and operation of the Services and (ii) monitoring your usage ("Aggregate Data"). As between us and you, all right, title, and interest in Aggregate Data, and all intellectual property rights therein, belong to and are retained solely by us. You acknowledge that we may also compile Aggregate Data based on End User Materials. You agree that we may (i) make Aggregate Data publicly available in compliance with applicable law, and (ii) use Aggregate Data for the furtherance of our own business purposes to the extent and in the manner permitted under applicable law, provided that such Aggregate Data does not identify you or your Confidential Information.
5. REPRESENTATIONS AND WARRANTIES
THE SERVICES ARE PROVIDED “AS IS.” WE EXPRESSLY DISCLAIM ALL WARRANTIES (WHETHER EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE) AND ANY IMPLIED WARRANTIES OF AVAILABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF INTELLECTUAL PROPERTY OR OTHER VIOLATION OF RIGHTS. WE DO NOT WARRANT THAT THE SERVICES WILL MEET YOUR INDIVIDUAL REQUIREMENTS. YOU ACKNOWLEDGE THAT THE SERVICES ARE MADE AVAILABLE TO YOU AHEAD OF GENERAL COMMERCIAL AVAILABILITY. AS A RESULT OF THIS, THE SERVICES ARE STILL BEING DEVELOPED AND IMPROVED BY US, AND YOU ACKNOWLEDGE THAT (I) THERE MAY BE ERRORS, BUGS OR DEFECTS; AND (II) THE SERVICES ARE PROVIDED WITHOUT WARRANTY, INCLUDING AS TO PERFORMANCE. GIVEN THE EARLY DEVELOPMENT NATURE OF THE SERVICES, YOU ARE ADVISED TO SAFEGUARD ANY IMPORTANT OR SENSITIVE DATA, TO USE CAUTION AND NOT TO RELY IN ANY WAY ON THE CORRECT FUNCTIONING OR PERFORMANCE OF THE SERVICES. WE GIVE NO WARRANTY OR ASSURANCE THAT THE SERVICE WILL BE MADE GENERALLY AVAILABLE.
You will defend us against any claim, suit or proceeding brought by a third party (“Claims”) arising from (i) any Claim that the End User Materials infringe, misappropriate or otherwise violate any third party’s Intellectual Property Rights or privacy or other rights; (ii) any Claim that the use, provision, transmission, display or storage of End User Materials violates any applicable law, rule or regulation; or (iii) any breach of the license restrictions in Section 1(b), and in each case, will indemnify and hold us harmless against any damages and costs awarded against us or agreed in settlement by you (including reasonable attorneys’ fees) resulting from such Claim. We will (a) promptly give you written notice of the Claim; (b) give you sole control of the defense and settlement of the Claim (provided that you may not settle any Claim unless the settlement unconditionally releases us of all liability); and (c) provide to you all reasonable assistance, at your expense.
7. LIMITATIONS OF LIABILITY
WE DO NOT EXCLUDE OR LIMIT IN ANY WAY OUR LIABILITY TO YOU WHERE IT WOULD BE UNLAWFUL TO DO SO. SUBJECT TO THE FOREGOING SENTENCE, (I) OUR LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR STRICT LIABILITY SHALL BE LIMITED TO US$100, AND (II) IN NO EVENT SHALL WE BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR OTHER SIMILAR DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGE TO REPUTATION, LOSS OF EARNINGS, LOSS OF PROFIT, LOSS OF BUSINESS OR BUSINESS OPPORTUNITY OR BUSINESS INTERRUPTION, INJURY TO FEELINGS IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT AND/OR THE USE OF OR INABILITY TO USE THE SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8. TERM AND TERMINATION
- Term. This Agreement and your access to and Use of the Services shall continue until terminated or suspended in accordance with this clause.
- Termination by us. We may terminate this Agreement and/ or suspend your right to access or Use the Services at any time for any reason, including any violation of this Agreement or our Acceptable Use Policy or where your account has been inactive for a period determined by us. We may also at any time in our entire discretion choose to discontinue the Services.
- Termination by you. You may terminate this Agreement for convenience at any time, upon written notice to us or by deleting your account for the Services.
- Consequences of Termination. Sections 1(b), 1(e), 1(f), 2, 4, 6, 7, 8, 9 and 10 survive any termination of this Agreement. Upon such termination, all rights granted to you hereunder will immediately cease, including your right to access and Use the Services.
- Deletion of End User Materials: Upon request by you made within 30 days after the termination of the Agreement, we will, within 30 days of us receiving your request, delete your End User Materials under our control. If you do not request the deletion of your End User Materials, we retain the right to delete your End User Materials in accordance with clause 4(d) above.
- Audit. We may monitor your access and use of the Services for purposes of monitoring your compliance with this Agreement. If requested, you must provide us with proof of your compliance with this Agreement. We reserve the right to investigate suspected violations of this Agreement and/or of the Acceptable Use Policy and to take appropriate measures to end such violations. You agree to cooperate with us to remedy any violation. We may also report any activity we suspect violates any law or regulation to appropriate law enforcement, regulatory or governmental authorities.
- Entire Agreement. This Agreement, including its exhibits, is the complete and exclusive agreement between the Parties with respect to its subject matter and supersedes any and all prior or contemporaneous agreements, communications and understandings, both written and oral, with respect to its subject matter. This Agreement may be amended or modified only by a written document executed by duly authorized representatives of the Parties.
- Notices. All notices required or permitted under this Agreement will be in writing, will reference this Agreement, and will be sent (i) in the case of notices to you, to the email address which you used to register for the Services; and (ii) in the case of notices to us to firstname.lastname@example.org. Such notices will be deemed given when sent to such email address.
- Waiver. Either Party’s failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the Party granting the waiver.
- Severability. If any provision of this Agreement is held invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of the Parties, and the remaining provisions of this Agreement will remain in full force and effect.
- Governing Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of New York, USA, without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction. The Parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Any legal action or proceeding arising under this Agreement will be brought exclusively in the New York state courts located in the County of New York, in the borough of Manhattan and in the federal courts located in the Southern District of New York and the Parties irrevocably consent to the personal jurisdiction and venue therein.
- Equitable Relief. Each Party agrees that a breach or threatened breach by such Party of any of its obligations under Section 2 or, in the case of you, Section 1(b), 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.
- Export Regulation. No access or use of the Services is permitted from those countries where such use is prohibited by Export Laws. You affirm that you are not named on, owned by, or acting on behalf of any U.S. government denied-party list, and agree to comply fully with all relevant export control and sanctions laws and regulations of the United States, United Kingdom and the European Union (“Export Laws”) to ensure that neither the Services, software, any End User Materials, nor any technical data related thereto is: (i) used, exported or re-exported directly or indirectly in violation of Export Laws; or (ii) used for any purposes prohibited by the Export Laws, including, but not limited to, nuclear, chemical, or biological weapons proliferation, missile systems or technology, or restricted unmanned aerial vehicle applications. You will complete all undertakings required by Export Laws, including obtaining any necessary export license or other governmental approval.
- U.S. Government End Users. The Services, software and Documentation were developed solely at private expense and are “commercial products”, “commercial items”, or “commercial computer software” as defined in the Federal Acquisition Regulation 2.101 and other relevant government procurement regulations including agency supplements. Any use, duplication, or disclosure of the Services, software and Documentation by or on behalf of the U.S. government is subject to restrictions as set forth in this Agreement as consistent with federal law and regulations. If these terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with federal law, you will immediately discontinue its use of the Services, software and Documentation.
- No Third-Party Beneficiaries. No provision of this Agreement is intended to confer any rights, benefits, remedies, obligations, or liabilities hereunder upon any Person other than the Parties and their respective successors and assigns.
- Assignment. You may not assign or transfer any of your rights under this Agreement, and any such attempt will be void. We may assign this Agreement and/or our rights under it to any of our affiliates or to any successor in interest.
Definitions “Acceptable Use Policy” means the acceptable use policy which applies to your Use of the Services which can be found at https://kdb.ai/legal/cloud-starter-aup/.
“Aggregate Data” means any data that is derived or aggregated in deidentified form from (i) any End User Materials; or (ii) your Use of the Services, including, without limitation, any usage data or trends with respect to the Services.
“Confidential Information” means data or information disclosed (i) in writing by one party to the other and marked confidential, (ii) orally by one party to the other and summarized in writing by the discloser and marked confidential, (iii) which a party ought to have known is confidential by its nature and (iv) the Services and Documentation.
“Documentation” means any operator and user manuals, training materials, specifications, minimum system configuration requirements, compatible device and hardware list and other similar materials in hard copy or electronic form if and as provided by us to you on code.kx.com/kdb-ai (including any revised versions thereof) relating to the Services, which may be updated from time to time.
“End User Materials” means all information, data, content and other materials, in any form or medium, that is submitted, posted, collected, transmitted or otherwise provided by you through the Services or to us in connection with your Use of the Services, but excluding, for clarity, Aggregate Data and any other information, data, data models, content or materials owned or controlled by us and made available through or in connection with the 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.
“KX IP” means the Services, the underlying software provided in conjunction with the Services, algorithms, interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the Services and any Documentation and Aggregate Data, all releases, new versions, updates, improvements, modifications or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship), and all Intellectual Property Rights in and to any of the foregoing.
“Licensed Volume” means the limits, volume or other measurement or conditions of permitted Use for the applicable Service as made available to you when you register for the Services including any limits on the number of Authorized Users permitted to Use the Services.
“New Products” means any KX software product or Service that either: (a) provides significantly different or added functionality from the Service; or (b) is of significantly different design than the Services even if the new software product includes some of the functionality of the Services (in whole or in part).
“Person” means any individual, corporation, partnership, trust, limited liability company, association, governmental authority or other entity.
“Services” means KDB.AI Cloud Starter Edition, including any releases, updates and new versions of such service but not New Products.
“Term” has the meaning given in section 8(a).
“Use” means to use and/or access the Services in accordance with this Agreement and the Documentation.