Carefully read the following terms and conditions
By clicking I accept or by installing, downloading or otherwise using the Kx Developer software you are agreeing on your own behalf and the entity you represent’s behalf (“Entity”) (both of which will be deemed an “End User”) that you both shall be bound by these terms and conditions. You are agreeing that as an End User you are becoming a party to this Kx Developer license agreement ("Agreement") and that you have the authority to bind the entity to license the product as an End User.
If you or the Entity do not agree to these terms and conditions, do not download the software.
To use Kx Developer you must also hold a valid software license agreement (as defined herein) with either Kx or its affiliate First Derivatives plc (“FD”). Do not use or access the software unless you have a valid software license agreement.
This Agreement is made between Kx Systems, Inc. (“Kx”) and the End User with respect to Kx Developer, any updates and/or any documentation provided to you by Kx (jointly, the “Kx Developer Software ”). You agree to use the Kx Developer 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
Kx hereby grants End User a non-transferable, non-exclusive license, without right of sublicense, to install the Kx Developer Software on a hard disk or other permanent storage media in executable code form and to use the Kx Developer Software solely for the purpose of developing and testing applications subject to the terms of this Agreement. You may use the Kx Developer Software for internal use only and you are not permitted under any circumstances to use the Kx Developer Software for (a) the development of a product or application which could be deemed to have the same or substantially the same functionality as the Kx Developer Software (b) repackaging of the Kx Developer Software (c) development of a product or application which could be deemed as competitive to the Kx Developer Software (d) attempt to distribute or make available to any third party any product or application which the End User may develop which utilizes in any manner the Kx Developer Software (e) research or development of a product or application which utilizes in any manner the Kx Developer Software now or in the future for a commercial purpose. For the avoidance of doubt, Kx may revoke this license and/or withdraw its consent at any time for End User to use the Kx Developer Software.
1.2 Kx Developer Software use restrictions
End User may not: (a) modify the Kx Developer Software or create derivative works, (b) sell, rent, lease, loan, license or distribute the Kx Developer Software to any third party, (c) attempt to decompile or reverse engineer the Kx Developer Software, or (d) copy the Kx Developer Software except for purposes of installing and executing it on a single computer and for back up purposes.
1.3 Kx Developer Software performance
End User shall not distribute or otherwise make available to any third party any report regarding the performance of the Kx Developer Software, Kx Developer Software benchmarks or any information from such a report unless End User receives the express, prior written consent of Kx to disseminate such report or information.
1.4 Delivery and installation
End User is responsible for downloading the Kx Developer Software from the designated Kx web site. End User is solely responsible for installing and configuring the Kx Developer Software.
1.5 No fees
The Kx Developer Software is licensed to End User without charge.
1.6 Third-party software
The Kx Developer Software includes open-source and other third-party software that is made available under the terms of open source 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. End User must respect and adhere to the licensing terms of Third Party Software.
1.7 Intellectual property ownership rights
End User acknowledges and agrees that Kx owns all rights, title and interest in the Kx Developer Software and in all of Kx’s patents, trademarks, trade names, inventions, copyrights, know-how and trade secrets relating to the design, manufacture and operation of the Kx Developer Software. The use by End 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. End User acknowledges that the Kx Developer Software is proprietary and contains confidential and valuable trade secrets of Kx, which End User agrees to safeguard as provided for under Section 5, Confidential Information, below. For the avoidance of doubt, End User disclaims all right, title and interest in the Kx Developer Software (whether in whole or in part) that is licensed pursuant to the terms of this Agreement. Such Kx Developer Software shall vest in and be owned by Kx absolutely and End 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 Developer Software, or in relation to any product or application developed by End User if such product or application in any manner utilises the Kx Developer Software or if any such application or registration includes any reference to or any aspect of the Kx Developer Software (whether in whole or in part) or any Kx Confidential Information.
2. No support or maintenance
The Kx Developer Software is licensed to End User without any support (consulting services) or maintenance (error corrections).
3. No warranty
The Kx Developer Software is provided "as is." Kx expressly disclaims and negates all warranties for the Kx Developer 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 Developer Software will meet End User requirements or that the operation of the Kx Developer Software will be uninterrupted or error free.
4. Limitation of liability
Kx shall not be liable for any damages, and in particular shall not be liable for any special, incidental, consequential, indirect or other similar damages, in connection with or arising out of the use of or inability to use the Kx Developer Software, even if Kx has been advised of the possibility of such damages. Such damages include, but are not limited to, loss of profits, revenue or business information. End User hereby waives any right to bring any claim, including but not limited to claims for losses or damages in connection with the Kx Developer Software under this agreement or under any other agreement that the end user has entered into with Kx or FD.
5. Confidential information
As used in this Agreement, the term "Confidential Information" means the definition provided in the software license between Kx and/or FD and the End User for access to the Kx and/or FD software (“Software License Agreement”) and shall also be deemed to include the Kx Developer Software and Documentation. Each party agrees that during the term of this Agreement any Confidential Information shared under this Agreement shall be subject to the confidentiality obligations provided in the Software License Agreement.
6. Term and termination of agreement
This Agreement is for the earlier of (i) the period that the Kx Developer Software is set to function when delivered to the End User or (ii) the expiry of the term of the Software License Agreement. Kx may also at its discretion terminate End User’s access to the Kx Developer Software at any time and Kx shall have the right to automatically terminate this Agreement upon Kx’s written notice. Upon termination of this Agreement or at any time upon Kx’s written request, End User shall destroy all copies of the Kx Developer Software in his possession. End User shall certify to Kx that it has complied with the foregoing requirements. The foregoing obligations apply to copies of the Kx Developer 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.
This is the only Agreement between End User and Kx relating to the Kx Developer Software. This Agreement shall be governed by California law, except as to copyright matters covered by U.S. 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 End 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.
End User agrees and certifies that the Kx Developer Software shall not be shipped, transferred or exported, directly or indirectly, into any country prohibited by the United States Export Administration Act, and the regulations thereunder, nor will the Kx Developer Software be used for any purpose prohibited by the same. The Kx Developer Software may from time to time be subject to export control and economic sanctions laws, regulations and requirements and to import laws, regulations and requirements of certain foreign governments. End User shall not, and shall not allow any third party to, export or allow the re-export or re-transfer of any part of the Kx Developer Software in violation of any export or import laws, regulations or requirements of any government, foreign agency or authority.
End User and the organisation which you represent and have bound to the terms of this Agreement shall be jointly and severally liable for End User’s obligations under this Agreement. This Agreement supersedes all prior or contemporaneous representations, negotiations, or other communications between the parties relating to the Kx Developer Software.
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. 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. 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.
The provisions of section 1.7 (“Intellectual Property Ownership Rights”), section 3 (“No Warranty”), section 4 (“Limitation of Liability”), section 5 (“Confidential Information”), section 6 (“Term and Termination”) and Section 7 (“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.