End-user no-fee Kx Dashboards Direct™ license agreement
Carefully read the following terms and conditions.
By clicking I accept or by installing, downloading or otherwise using the Kx Dashboards Direct™ software you are agreeing on your own behalf (“you”) and if applicable, the entity you represent’s behalf (“Entity”) (both of which will be deemed a “User”) that you both shall be bound by these terms and conditions.
User warrants that the identification details that User provides to Kx to access the Kx Dashboards Direct™ software including but not limited to name, email address, location and organisation or entity information is true and correct. User agrees that this agreement is enforceable like any written agreement signed by user and legally binding between user and Kx Systems, Inc. If you use the software as an employee, contractor, or agent of a corporation, partnership or similar entity, you represent and warrant that you have the authority to bind the entity to license the software as a user.
If User does not agree to these terms and conditions, do not download the software. User may not access the Kx Dashboards Direct™ software if User is a direct competitor of Kx.
This Agreement is made between Kx Systems, Inc. (“Kx”) and the User with respect to Kx Dashboards Direct™ Software any updates, license keys, and/or any documentation provided to User by Kx (jointly, the “Kx Dashboards Direct™ Software”). User agrees to use the Kx Dashboards Direct™ Software under the terms and conditions set forth below which shall be subject to change from time to time.
1. License grants
1.1 Grant of license
Subject to and conditional upon User’s strict compliance with this Agreement, Kx hereby grants User a limited, non-transferable, non-exclusive license, without right of sublicense, during the term of this Agreement, to install the Kx Dashboards Direct™ Software on a hard disk or other permanent storage media in executable code form and to use the Kx Dashboards Direct™ Software internally solely for the purpose of building software visualisation tools or dashboards using the Kx Dashboards Direct™ Software subject to the terms of this Agreement. User may use the Kx Dashboards Direct™ Software for internal use only. For the avoidance of doubt, Kx may revoke this license and/or withdraw its consent at any time for User to use the Kx Dashboards Direct™ Software. Nothing in this Agreement shall be construed as the grant of any licence or other right to User, to or in respect of any Intellectual Property or Confidential Information of Kx except as expressly set forth herein.
1.2 Kx Dashboards Direct™ Software use restrictions
(a) Usage Restrictions. User is not permitted under any circumstances to use the Kx Dashboards Direct™ Software for (a) the development of a visualization tool(s) or dashboard(s), product or application which could be deemed to have the same or substantially the same functionality as the Kx Dashboards Direct™ Software (b) repackaging of the Kx Dashboards Direct™ Software (c) development of a visualization tool(s) or dashboard(s), or product or application which could be deemed as competitive to the Kx Dashboards Direct™ Software (in whole or in part) (d) attempt to distribute or host or make available to any third party any visualisation tool(s) or dashboard(s), product or application which the User may develop which utilizes in any manner the Kx Dashboards Direct™ Software (e) research or development of a visualization tool(s) or dashboard(s), product or application which utilizes in any manner the Kx Dashboards Direct™ Software now or in the future for a commercial purpose or service. Furthermore, User may not attempt to or use the Kx Dashboards Direct™ Software with any database software other than Kx’s proprietary Kdb+ software.
(b) Modifications to the Kx Dashboards Direct™ Software. User undertakes that it will not allow or permit another individual or entity to have any right to access or use the Kx Dashboards Direct™ Software nor to use the Kx Dashboards Direct™ Software on its behalf; and, in the event of any such unauthorized access or use, it shall promptly notify Kx. User shall not and shall not attempt to permit any third party to: (i) use the Kx Dashboards Direct™ Software beyond the scope of the license granted under Section 1.1, or (ii) alter, modify, translate, mirror, adapt or frame the whole or any part of the Kx Dashboards Direct™ Software (even for the purposes of error correction) or create derivative works (except as necessary to configure the menus, options and tools provided for such purposes and contained in the Kx Dashboard’s Direct™ Software), or improvements whether or not patentable to the Kx Dashboards Direct™ Software or any documentation or (iii) display, sell, rent, lease, loan, license, lend, assign, publish, transfer distribute or otherwise make available all or any portion of the Kx Dashboards Direct™ Software (in whole or in part), or any features or functionality of the Kx Dashboards Direct™ Software, and/or documentation (as applicable) in any form or media or by any means to any third party for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud, or other technology or service, or (iv) attempt to decompile, decode, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Kx Dashboards Direct™ Software or attempt to gain access to the source code of the Kx Dashboards Direct™ Software or any part thereof, or (v) copy the Kx Dashboards Direct™ Software except for purposes of installing and executing it on a single computer and for back up purposes, or (vi) use the Kx Dashboards Direct™ Software for more than a total of five (5) concurrent individual users, or (vii) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other Intellectual Property or proprietary rights notices provided on or with the Kx Dashboards Direct™ Software or documentation, including any copy thereof, or (viii) use unauthorized license keys or distribute license key(s). Kx Dashboards Direct™ Software is protected by copyright and other intellectual property laws and international treaty provisions which User agrees to safeguard as provided for under section 6, Confidential Information, below. User further agrees it is responsible and liable for all uses of the Kx Dashboards Direct™ Software and documentation provided to User by Kx and is responsible and liable for all actions and failures to take required actions with respect to the Kx Dashboards Direct™ Software and documentation provided to User.
1.3 Kx Dashboards Direct™ Software performance
User shall not distribute or otherwise make available to any third party any report regarding the performance of the Kx Dashboards Direct™ Software or any report which contains a competitive analysis, Kx Dashboards Direct™ Software benchmarks or any information from such a report unless User receives the express, prior written consent of Kx to disseminate such report or information.
1.4 Delivery and installation
User is responsible for downloading the Kx Dashboards Direct™ Software from the designated Kx website. User is solely responsible for installing and configuring the Kx Dashboards Direct™ Software.
1.5 Number of instances and users
The Kx Dashboards Direct™ Software is subject to instance and user restrictions and is licensed to run on one instance for use by a maximum of five (5) concurrent individual users.
1.6 Third-party software
The Kx Dashboards Direct™ Software may contain or be provided with components which are subject to the terms and conditions of "open source" software or commercial licenses ("Third Party Software"). Each Third Party Software module, library or package is licensed under the terms of its own license agreement as specified in the applicable help, notices, about or source files. Copyrights and other proprietary rights to the Third Party Software are held by the copyright holders identified in the applicable help, notices, about or source files. User must respect and adhere to the licensing terms of Third Party Software.
1.7 Intellectual property ownership rights
User acknowledges and agrees that Kx owns all rights, title and interest in the Kx Dashboards Direct™ Software and in all of Kx’s Intellectual Property relating to the design, manufacture and operation of the Kx Dashboards Direct™ Software. (“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 proprietary rights is authorized only for the purposes set forth herein, and upon termination of this Agreement for any reason, such authorization will cease. User acknowledges that the Kx Dashboards Direct™ Software is proprietary and contains confidential and valuable trade secrets of Kx, which User agrees to safeguard as provided for under section 6, Confidential Information, below. For the avoidance of doubt, User disclaims all right, title and interest in the Kx Dashboards Direct™ Software (whether in whole or in part) that is licensed pursuant to the terms of this Agreement. User irrevocably waives, to the extent permitted by applicable law, any and all claims User may now or hereafter have in any jurisdiction to so-called "moral rights." Such Kx Dashboards Direct™ Software shall vest in and be owned by Kx absolutely and User 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 Kx Dashboards Direct™ Software, or in relation to any visualization tool or dashboard, or product or application developed by User if such visualization tool or dashboard, product or application in any manner utilises the Kx Dashboards Direct™ Software or if any such application or registration includes any reference to or any aspect of the Kx Dashboards Direct™ Software (whether in whole or in part) or any Kx Confidential Information.
2. No support or maintenance
The Kx Dashboards Direct™ Software is licensed to User without any support (consulting services) or maintenance (error corrections).
The Kx Dashboards Direct™ Software is licensed to the User without charge.
4. No warranty
The Kx Dashboards Direct™ software is provided “as is’. Kx expressly disclaims and negates all warranties for the Kx Dashboards Direct™ software, whether expressed, implied, statutory or otherwise, and Kx specifically disclaims any implied warranties of merchantability, fitness for a particular purpose, noninfringement of intellectual property or other violation of rights. Kx does not warrant that the Kx Dashboards Direct™ software will meet User requirements or that the operation of the Kx Dashboards Direct™ software will be uninterrupted or error-free or free of harmful components.
5. Limitation of liability
We do not exclude or limit in any way our liability to user where it would be unlawful to do so. kx shall not be liable for any damages under or in connection with this agreement. Kx shall not be liable for any special, incidental, consequential, indirect or other similar damages of any kind under any cause or action whether in contract or tort (including negligence), in connection with or arising out of the use of, or, inability to use the Kx Dashboards Direct™ software, even if Kx has been advised of the possibility of such damages. Such damages include, but are not limited to, loss of profits, sales or revenue, business information, loss of or damage to goodwill, delay, malfunction or inability to use the Kx Dashboards Direct™ software loss resulting from system or system service failure, loss of data, malfunction, or shutdown; failure to accurately transfer, read, or transmit information; failure to update or provide correct information; system incompatibility or provision of incorrect compatibility information; or breaches in system security. User hereby waives any right to bring any claim, including but not limited to claims for losses or damages (including to the extent that such losses or damages arise in connection with a third-party claim brought against the User) in connection with the Kx Dashboards Direct™ software licensed under this agreement.
The parties agree that the limitations in this section 5 shall survive and apply even if any limited remedy in this Agreement is found to have failed of its essential purpose. The User acknowledges that it has not relied on any representations made by Kx in entering into or commencing any activity under this Agreement.
6. Confidential information
(a) As used in this Agreement, the term “Confidential Information” means (i) information disclosed in writing by Kx and marked confidential, (ii) information disclosed orally by Kx to User and summarized in writing and marked confidential within thirty (30) days of such oral disclosure, and (iii) the Kx Dashboards Direct™ Software, license key files and documentation including any Intellectual Property appurtenant thereto. User agrees that during the term of this Agreement and for a period of five (5) years thereafter, that it will treat as confidential all Confidential Information of Kx, 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 Kx’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 User permitted under this Agreement, and subject to confidentiality obligations at least as protective as those set forth herein. Without limiting the foregoing, User 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 Kx under this Agreement, but in no event less than reasonable care.
(b) The foregoing restrictions will not apply to information that (i) is known to User at the time of communication, (ii) has become publicly known through no wrongful act of User, (iii) has been rightfully received from a third party authorized to make such communication without restriction, (iv) has been independently developed by the User (which can be evidenced with contemporaneous records), (v) has been approved for release by written authorization of Kx, or (vi) is required by law to be disclosed; provided that if User is required to disclose Kx’s Confidential Information pursuant to an order under law, User shall give Kx sufficient notice of such disclosure to allow Kx reasonable opportunity to object to and take necessary legal action to prevent such disclosure. User will not issue any press release or make any other public communication with respect to this Agreement or its use of the Kx Dashboards Direct™ Software.
(c) User agrees not to disclose benchmark, test or performance information regarding the Kx Dashboards Direct™ Software. User agrees not to disclose benchmark, test or performance information regarding the Kx Dashboards Direct™ Software to any third party nor to distribute or otherwise make available to any third party any report regarding the performance of the Kx Dashboards Direct™ Software except as explicitly authorized by Kx in writing in advance.
7. Term and termination of Agreement
(a) Term. This Agreement is effective as of the installation of the Kx Dashboards Direct™ Software and shall continue until the earlier of (i) the period that the Kx Dashboards Direct™ Software is set to function when delivered to the User; or (ii) the beginning of the next calendar year; or (iii) a modification to the terms of the Agreement pursuant to section 7.1 (d) or (iv) termination of the Agreement by Kx pursuant to section 7.1 (b). At the beginning of each calendar year, the Agreement shall automatically renew for an additional year, but subject to any revised terms which are downloaded or made available pursuant to section 7.1 (d). Kx may also at its discretion terminate User’s access to the Kx Dashboards Direct™ Software at any time and Kx shall have the right to automatically terminate this Agreement upon Kx’s written notice.
(b) Kx termination. Kx shall terminate this Agreement at any time at its discretion without notice. Upon termination of this Agreement or at any time upon Kx’s written request, User shall destroy all copies of the Kx Dashboards Direct™ Software in his possession. User shall certify to Kx that it has complied with the foregoing requirements. The foregoing obligations apply to copies of the Kx Dashboards Direct™ Software in all forms, partial and complete, in all types of media and computer memory, and whether or not modified or combined with other materials.
(c) Temporary suspension. Kx may suspend User’s right to access or use of the Kx Dashboards Direct™ Software if Kx determines that User (i) poses a security risk to Kx or any third party, (ii) access or use could adversely impact the Kx Dashboards Direct™ Software, (iii) could subject Kx or our affiliates, or any third party to liability, or (iv) or their actions could be fraudulent.
(d) Amendments to the Agreement. Kx may amend this Agreement at any time. This Agreement may be modified by one of the following events (i) the User downloads a revised version of the Kx Dashboards Direct™ Software with revised license terms (ii) a representative or colleague from the Entity which you represent downloads a revised version of the Kx Dashboards Direct™ Software with revised license terms (iii) User is notified by Kx on their website or via email of a change or update in the license terms. If an event described in sub clauses (i) through to (iii) occurs, User acknowledges and agrees that by continuing to use the Kx Dashboards Direct™ Software, User agrees to be bound by the revised terms from the date they are modified. User is solely responsible for monitoring any changes to this Agreement. Absence of notification does not relieve User of the obligation to monitor all changes to the Agreement, or of such modifications’ enforceability.
8.1 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.
8.2 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.
8.3 This Agreement and all related documents and all matters arising out of or relating to this Agreement whether in contract, tort, or statute shall be governed by and construed in accordance with the laws of the State of New York, United States of America, except as to copyright matters covered by U.S. Federal law. This Agreement is deemed entered into at New York by both parties. Each party irrevocably and unconditionally agrees to the exclusive jurisdiction of the State of New York and it will not commence any action, litigation, or proceeding of any kind whatsoever against any other party in any way arising from or relating to this Agreement and all contemplated transactions, including, but not limited to, contract, equity, tort, fraud, and statutory claims, in any forum other than the State of New York (except as permitted by Kx as detailed below). User hereby waives any objections to venue in those courts. Each party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. 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 User of the provisions of section 1 relating to this Agreement, or for actions for injunctive relief to protect Kx Confidential Information, Kx will have the right at its discretion to seek remedies in courts of competent jurisdiction within any applicable territory. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer information Transactions Act, as currently enacted by any jurisdiction or as may be codified or amended from time to time by any jurisdiction, do not apply to this Agreement.
8.4 The Kx Dashboards Direct™ Software including any software, documentation, and any related technical data included with, or contained in, such Kx Dashboards Direct™ Software and any products utilizing any such Kx Dashboards Direct™ 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. User 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. User accepts and agrees that a) it will not use the Regulated Software for the development, design, manufacture or production of nuclear, chemical or biological weapons of mass destruction; b) User is 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”) c) User is not a citizen, national or resident of and is not under the control of a US Embargoed Country; d) User will not attempt to and will not download or otherwise export for re-export the Regulated Software e) User is not listed on the United States Department of Treasury list of Specially Designated Nationals, Specially Designated Terrorists and Specially Designated Narcotic Traffickers. User 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. For clarity, User is solely responsible for compliance in using and accessing the Kx Dashboards Direct™ Software and the compliance in the region in which any of the foregoing occurs. User shall be responsible for any breach of this section 8.4 by its, and its successors' and permitted assigns', parent, affiliates, employees, officers, directors, customers, agents, distributors, resellers, or vendors.
8.5 Kx shall be permitted to audit pertinent records and computers of User and where applicable attend User’s facilities for the purpose of conducting inspections of your records and computers in order to confirm your compliance with the terms of this Agreement.
8.6 User and the organisation which User represents and has bound to the terms of this Agreement shall be jointly and severally liable for User’s obligations under this Agreement.
8.7 This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes all prior or contemporaneous representations, negotiations, or other communications between the parties relating to the Kx Dashboards Direct™ Software. Notwithstanding the foregoing, if User has entered into a separate software license agreement with First Derivatives plc or Kx for use of the “Kx for Dashboards” software, that software license agreement remains in full force and effect and its terms shall prevail over any conflicting terms of this Agreement.
8.8 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.
8.9 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.
8.10 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.
8.12 User agrees that the Kx Dashboards Direct™ 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 Kx Dashboards Direct™ Software by a U.S. government agency shall be prohibited except as expressly permitted by this Agreement, which terms shall govern.
8.13 The provisions of section 1.3 (“Kx Dashboards Direct™ Software Performance”) section 1.7 (“Intellectual Property Ownership Rights”), section 4 (“No Warranty”), section 5 (“Limitation of Liability”), section 6 (“Confidential Information”), section 7 (“Term and Termination”) and Section 8 (“General”) 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.