:kx-brands-google-cloud:
Kdb+ software end-user agreement¶

Carefully read the following terms and conditions. By accessing the Kdb+ Software via the Google platform, you are agreeing to be bound by these terms and conditions (which may be updated from time to time) and to the extent you are acting on behalf of a permitted organization that you have authority to act on their behalf and bind them to these terms and conditions. If you do not agree to these terms and conditions or do not have the necessary authority, do not access or use the software. You may not access the Kdb+ Software if you are a direct competitor of KX.

1. Scope of agreement¶

This Kdb+ Software End User Agreement (“Agreement’) is made between Kx Systems, Inc. (“KX” or “We”) and you the person or entity which accesses the Kdb+ Software (“User” or “you”), with respect to KX’s Kdb+ Software made available at the online GCP Marketplace at https://console.cloud.google.com/marketplace (“Google Platform”) owned and controlled by Google Inc. You are required to have a Google account for the Google Platform in good standing prior to accessing the Kdb+ Software. KX shall not in any way be liable for the services provided to you by Google Inc.
KX has developed a 64-bit software program that includes a relational database system and KX’s q programming language (“Kdb+ Software”). KX has made this Kdb+ Software available for usage within the Google Platform. You are required to pay for access to the Kdb+ Software for any usage. Payment by you for use of the Kdb+ Software shall be made directly by you via the Google Platform. Subject to your Google account being in good standing, you will be provided an instance of the Kdb+ Software to be used strictly by you within the Google Platform environment. The Kdb+ Software includes any Updates (defined below) and/or any documentation provided to you by KX.
This Agreement sets forth the terms on which KX will permit you to use the Kdb+ Software within the Google Platform. We do not sell or license the Kdb+ Software or any documentation to you. We remain the owners of the Kdb+ Software and any documentation at all times.

2. Permitted use¶

Subject to the User purchasing access to the Kdb+ Software via the Google Platform, and subject to the terms and conditions of this Agreement, KX hereby grants to the User limited non-exclusive, non-transferable right, without the right to grant sublicenses, to permit you to use the Kdb+ Software via the Google Platform solely for the User’s
1. internal business operations and/or
2. internal development and testing.

3. Restrictions on kdb+ software use¶

Usage Restrictions. You undertake that:
1. Your access to the Kdb+ Software is solely for you. You will not allow or permit another individual or entity to have any right to access or use the Kdb+ Software on your behalf; and, in the event of any such unauthorized access or use, you shall promptly notify KX.
2. In the event that you develop an application or program, utilizing Kdb+ Software, you will not
  1. attempt to host that application or program for any third party unless you have a separate license directly with KX for the Kdb+ Software which permits software hosting services
  2. attempt to host that application or program on the Google Platform for any third party or permit that third party to remotely access the functionality of the application or program
3. The Kdb+ Software may only be used for User’s internal business purposes. You may not grant third parties direct access to the Kdb+Software.
Modifications to Kdb+ Software. You will not attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Kdb+ Software. You agree and acknowledge that the Kdb+ Software is proprietary and contains confidential and valuable Intellectual Property of KX, which you agree to safeguard as provided for under section 9, Confidential Information, below.
Transfer of the Kdb+ Software. The Kdb+ Software is only permitted to be accessed by you via the Google Platform. You will not attempt to transfer, copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Kdb+ Software (in whole or in part) and/or documentation (as applicable) in any form or media or by any means.

4. Key files and updates¶

Key Files. KX shall deliver a key file that permits the User to access the Kdb+ Software in the Google Platform. The key file will stop functioning upon the earlier of
1. in the event you delay or are delinquent in the payment of the fees to the Google Platform
2. termination of the Agreement
3. you are no longer an authorized user of the Kdb+ Software.
The key file for the Kdb+ Software permits you to access the Kdb+ Software solely via the Google Platform.
Access to the Kdb+ Software. Prior to access being provided to the Kdb+ Software, certain information will be reported to KX as detailed in the Schedule to this Agreement this confirms that you are licensed to use the Kdb+ Software. You will not attempt to interfere, delay or in any way restrict the reporting to the KX server. If the license manager software determines that the Kdb+ Software is not authorized the license manager software will halt the Kdb+ Software.
Updates. Upon KX’s commercial release of an update or a modified version of the Kdb+ Software which incorporates new features and other improvements in performance or functionality from the previous version (“Update”), KX will make the Update available to you provided this Agreement is in force for the year in which the Update is commercially released. Updates will be made available at the Google Platform’s landing page.
No support or maintenance. Access to the Kdb+ Software is provided to you without any support (consulting services) or maintenance (error corrections).
Audit. KX shall be permitted to audit pertinent records and computers of you and where applicable attend your facilities or if applicable the premises of the organization which you represent for the purpose of conducting inspections of your records and computers in order to confirm your compliance with the terms of this Agreement.

5. Ownership of kdb+ software¶

KX owns all right, title and interest in the Kdb+ Software and documentation and any Intellectual Property (whether registerable or un-registerable) appurtenant thereto including in any Updates, modifications, improvements, or developments to the Kdb+ Software arising during this Agreement. (“Intellectual Property” 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 designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) 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.)
The use by User of such Intellectual Property rights is authorized only for the purposes set forth herein and upon termination of this Agreement for any reason, such authorization will automatically cease.
For the avoidance of doubt, User disclaims all right, title and interest in the Kdb+ Software (whether in whole or in part), regardless of whether such Kdb+ Software is embedded in an application or program developed by you. Such Kdb+ Software (including if the Kdb+ Software is embedded in an application or program developed by you) shall vest in and be owned by KX absolutely pursuant to section 5.1 of this Agreement. You shall not apply for or register any patents, trademarks, trade names, inventions, copyrights, know-how or trade secrets relating to the design, manufacture and operation of any application or program if any such application or registration includes any reference to or any aspect of the Kdb+ Software (whether in whole or in part).

6. Limited warranty¶

To the extent permitted by law the Kdb+ Software is provided “as is”. There are no express or implied warranties relating to the Kdb+ Software, the documentation, and KX expressly disclaims any implied warranties of merchantability, fitness for a particular purpose satisfactory quality and non-infringement. KX does not warrant and hereby disclaims any implied warranty that the operation of the Kdb+ Software will be error-free or uninterrupted.

7. Indemnification¶

By KX. KX shall have the option but not the obligation to indemnify defend, or at its option settle, at its own expense, any finally awarded damages (including User’s attorney fees) for a third-party claim, suit or proceeding brought against you alleging that the Kdb+ Software infringes any copyright, trademark or United States patent, or violates the trade secret rights of a third party, subject to the limitations hereinafter set forth. KX shall have sole control of any such action or settlement negotiations. You agree to notify KX promptly in writing of such claim, suit or proceeding and give KX authority to proceed as contemplated herein, and, at KX’s expense, shall give KX proper and full information and assistance to settle and/or defend any such claim, suit or proceeding. You shall not be liable for any costs or expenses or other obligations incurred as the result of a settlement (other than return of the Kdb+ Software) without your prior written authorization. KX shall not have any liability for any settlement entered into by you unless KX has consented to such settlement in writing.
KX Options. In the event that
1. the Kdb+ Software is held to infringe the trademark, copyright, patent or trade secrets of a third party and the use of the Kdb+ Software is enjoined,
2. KX concludes that the Kdb+ Software infringes the trademark, copyright, patent or trade secrets of a third party, or
3. in the case of settlement as referred to in section 7.1 above, KX may, if possible on commercially reasonable terms, at its own expense and option:
  1. procure for the User the right to continue to use the Kdb+ Software,
  2. replace the infringing components of the Kdb+ Software with other components with the same or similar functionality that are reasonably acceptable to the User, or
  3. suitably modify the Kdb+ Software so that it is non-infringing and reasonably acceptable to the User.
If none of the foregoing options are available to KX on commercially reasonable terms, KX may terminate this Agreement without further liability to User except as provided in section 7.1 above.
Limitation. Notwithstanding the provisions of section 7.1 above, KX assumes no liability for
1. infringements arising from combinations of the Kdb+ Software with non-KX software or hardware products, including any of User’s products,
2. modifications to the Kdb+ Software made by any party other than KX or KX’s authorized representative or made under KX’s direction,
3. use of a prior version of the Kdb+ Software to the extent such infringement would have been avoided by the use of the current version of the Kdb+ Software, provided that KX has offered or provided such current version to User at no additional cost, or
4. trademark infringements involving any marking or branding not applied by KX or involving any marking or branding applied at the request of User and not approved by KX
5. any use of the Kdb+ Software outside of the Google Platform environment.
By User. User agrees to indemnify and hold KX harmless against any finally awarded cost, loss, liability or expense (including reasonable attorneys' fees) arising out of a claim suit or action under or connection with
1. unauthorized use of the Kdb+ Software pursuant to section 3
2. unauthorized use or access to the Kdb+ Software by a party or entity other than the User
3. suits or actions as a result of User’s use of the Kdb+ Software including to the extent that you use or attempt to use the Kdb+ Software outside of the Google Platform environment
4. third party infringement claims, suits or actions against KX as a result of the User’s use of the Kdb+ Software.
Notwithstanding the foregoing, KX’s liability to indemnify User shall not apply to the extent that such claims suits or actions are subject to User’s indemnification obligations under section 7.4 above.

8. Limitation of liability and damages¶

We do not exclude or limit in any way our liability to you where it would be unlawful to do so. This includes liability for death or personal injury caused by our negligence or the negligence of our employees, agents or subcontractors or for fraud or fraudulent misrepresentation.
Limitation of Liability. Other than as expressly stated herein, in no event shall either party be liable for any costs of procurement of substitute goods or services, loss of use, loss or corruption of data, loss of goodwill interruption of business, lost profits , loss of revenue, loss of anticipated savings or any consequential, special, incidental, or indirect damages of any kind under any cause or action whether in contract or tort (including negligence), 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.
Limitation of Damages. Except for the parties’ obligations under section 7 (“Indemnification”) above or a User’s reproduction, use or distribution of the Kdb+ Software outside the scope of the Licenses granted in section 2 above, fraud or fraudulent misrepresentation, each party, its affiliates and their respective officers, directors, employees, agents and representatives total liability for direct damages under or in connection with this Agreement, whether in an action in contract or tort (including negligence) or any other form of action will in no event exceed $10,000.
Entire Financial Liability. For the avoidance of doubt this section 8 sets out the entire financial liability of each party and their respective affiliates, officers, directors, employees, agents and representatives and their successors and assigns under or in connection with this Agreement.

9. Confidential information and publicity¶

Confidential Information. As used in this Agreement, the term “Confidential Information” means
1. information disclosed in writing by one party to the other and marked confidential,
2. information disclosed orally by one party to the other and summarized in writing by the discloser and marked confidential within thirty (30) days of such oral disclosure, and
3. the Kdb+ Software and documentation including any Intellectual Property appurtenant thereto.
Non-Disclosure. 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.
Exceptions. The foregoing restrictions will not apply to information that
1. is known to the receiving party at the time of communication to the receiving party,
2. has become publicly known through no wrongful act of the receiving party,
3. has been rightfully received from a third party authorized to make such communication without restriction,
4. has been independently developed by the receiving party,
5. has been approved for release by written authorization of the communicating party, or
6. is required by law to be disclosed; provided that if a party is required to disclose the other party’s Confidential Information pursuant to an order under law, the disclosing party shall give the party owning the Confidential Information sufficient notice of such disclosure to allow the owning party reasonable opportunity to object to and take necessary legal action to prevent such disclosure.
Benchmark Test Results. User agrees not to disclose benchmark, test or performance information regarding the Kdb+ Software to any third party except as explicitly authorized by KX in writing.

10. Term and termination¶

Term and Modified Terms. Except as provided in sections 10.2 and 10.3 below so long as User has paid its fees to the Google Platform, this Agreement will remain in force.
Termination for Cause. Either party may terminate this Agreement at any time upon written notice to the other party if
1. the other party materially breaches any provision hereof and fails to cure such breach within thirty (30) days after receiving written notice of such breach,
2. the other party becomes insolvent,
3. the other party makes an assignment for the benefit of creditors, or
4. 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.
KX Termination KX shall terminate at any time if
1. User’s use of the Kdb+ Software is contrary to the terms of this Agreement,
2. User’s failure to pay the fee or any other amount that is due to the Google Platform
3. KX no longer provides the Kdb+ Software via the Google Platform.
Termination of this Agreement by KX for the foregoing shall in no way relieve the User from its obligation to pay any sums accrued or due prior to the date of such termination.
Amendments to the Agreement. KX may amend this Agreement at any time. This Agreement shall continue until the User downloads or is provided with a revised version of the Agreement. You acknowledge and agree that by continuing to use the Kdb+ Software from the date of revision, you agree to be bound by the revised terms. You are solely responsible for monitoring any changes to this Agreement. Absence of notification does not relieve you of the obligation to monitor all changes to the Agreement, or of such modifications’ enforceability.
Surviving Provisions of Agreement. The provisions of section 5 (“Ownership of Kdb+ Software”), section 6 (“Limited Warranty”), section 7 (“Indemnification”), section 8 (“Limitation of Liability and Damages”), section 9 (“Confidential Information and Publicity”), section 10 (“Term and Termination”) and section 11 (“Additional Provisions”) shall survive the termination of this Agreement for any reason. All other rights and obligations of the parties shall cease upon termination of this Agreement.

11. Additional provisions¶

Assignment and Successors. User is not permitted to assign any of its rights nor delegate any of its obligations under this Agreement to any third party without the express written consent of KX. This prohibition extends to any reorganization or merger of User or the sale of User’s business or its assets to a third party.
Open Source. The Kdb+ Software may contain or be provided with components which are subject to the terms and conditions of “open source” software licenses (“Open Source Software”). Open Source Software may be identified in the documentation relating to the Kdb+ Software, or in a list of the Open Source Software provided upon User’s written request. To the extent required by the license that accompanies the Open Source Software, the terms of such license will apply in lieu of the terms of this Agreement with respect to such Open Source Software, including, without limitation, any provisions governing access to source code, modification or reverse engineering.
Anti-Bribery. User shall comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 and the US Foreign Corrupt Practices Act 1977.
Export. The Kdb+ Software including any software, documentation, and any related technical data included with, or contained in, such Kdb+ Software and any products utilizing any such Kdb+ Software, documentation, or technical data (collectively, “Regulated Software”) may be subject to export control and economic sanctions laws, regulations and requirements and to import laws, regulations and requirements of certain foreign governments including but not limited to US export control laws and regulations, including the Export Administration Regulations and the International Traffic in Arms Regulations. You shall not, and shall not permit any third parties to, directly or indirectly, export, reexport, or release any Regulated Software to any jurisdiction or country to which, or any party to whom, the export, reexport, or release of any Regulated Software is prohibited by applicable federal or foreign law, regulation, or rule. You agree:
1. to not use the Regulated Software for the development, design, manufacture or production of nuclear, chemical or biological weapons of mass destruction;
2. you are not located in Cuba, Iran, Sudan, Iraq, North Korea, Syria, nor any other country to which the United States has prohibited export or that has been designated by the U.S Government as a ‘terrorist supporting’ country (“US Embargoed Country”);
3. you are not a citizen, national or resident of and are not under the control of a US Embargoed Country;
4. you will not attempt to and will not download or otherwise export for re-export the Regulated Software;
5. you are not listed on the United States Department of Treasury list of Specially Designated Nationals, Specially Designated Terrorists and Specially Designated Narcotic Traffickers.
You shall not, and shall not permit any third parties to, directly or indirectly, export, reexport, or release any Regulated Software to any jurisdiction or country to which, or any party to whom, the export, reexport, or release of any Regulated Software is prohibited by applicable federal or foreign law, regulation, or rule. You shall be responsible for any breach of this section 11.4 by its, and its successors’ and permitted assigns’, parent, affiliates, employees, officers, directors, customers, agents, distributors, resellers, or vendors.
General. This is the only Agreement between User and KX relating to User’s access to the Kdb+ Software. The parties to this Agreement are independent contractors. The parties to this Agreement do not intend that any term of this Agreement will be enforceable by any third party or person who is not a party to this Agreement. For the avoidance of doubt this Agreement is between you and KX and is entirely separate to any terms you may have agreed to within the Google Platform.

This Agreement shall be governed by California law, except as to copyright matters covered by Federal law. This Agreement is deemed entered into at Palo Alto, California by both parties. Any dispute related to this Agreement shall be resolved only in the California State Courts or Federal Courts located in Santa Clara County, California, and User hereby waives any objections to venue in those courts.

Should any provision of this Agreement be declared unenforceable in any jurisdiction, then such provision shall be deemed to be severed from this Agreement and shall not affect the remainder hereof. Furthermore, with respect to a violation by you of the provisions of sections 2 and 5 and/or payment obligations relating to this Agreement, KX will have the right at its discretion to seek remedies in courts within any applicable territory. User and the organization which you represent and have bound to the terms of this Agreement shall be jointly and severally liable for User’s obligations under this Agreement.

This Agreement supersedes all prior or contemporaneous representations, negotiations, or other communications between the parties relating to the subject matter of this Agreement. It replaces and supersedes any previous oral or written agreements, in relation to this Agreement including any previous versions of the Agreement accessed by the User or any representative from the organization which you have bound under this Agreement, and any understandings or other communications between the parties in connection with this Agreement.

The waiver by either party of a breach or right under this Agreement will not constitute a waiver of any other or subsequent breach or right. Non-performance of either party shall be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts, order or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the control and not caused by the negligence of the non-performing party.

User agrees that the Kdb+ Software is “commercial computer software” and/or “commercial computer software documentation” pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable, and any use, modification, reproduction, release, performance, display, or disclosure of the Kdb+ Software by a U.S. government agency shall be prohibited except as expressly permitted by this Agreement, which terms shall govern.

Schedule¶

Information Reported to KX The following Kdb+ Software variables are reported by the license manager software (and are, upon notice, subject to change):

content	as in
UTC timestamp	`.z.p`
IP address	`.z.a`
hostname	`.z.h`
OS version	`.z.o`
process ID	`.z.i`
user ID	`.z.u`
kdb+ version	`.z.K`
number of secondary tasks	`\s`
port number	`\p`
license	`.z.l`
CPU mask	`sched_getaffinity(2)`
CPU usage	`getrusage(2)`

:kx-brands-google-cloud:Kdb+ software end-user agreement¶