KX Insights™ end-user agreement :kx-brands-google-cloud:
CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS.
BY CLICKING “I ACCEPT” OR BY ACCESSING OR OTHERWISE USING KX INSIGHTS™ YOU ARE AGREEING TO BE BOUND BY THESE TERMS AND CONDITIONS (WHICH MAY BE UPDATED FROM TIME TO TIME). TO THE EXTENT YOU ARE ACTING ON BEHALF OF A PERMITTED ORGANISATION, YOU CONFIRM THAT YOU HAVE THE NECESSARY POWER AND AUTHORITY TO ACT ON THEIR BEHALF AND BIND THEM TO THIS AGREEMENT. YOU WARRANT THAT THE IDENTIFICATION DETAILS THAT YOU PROVIDE TO KX TO ACCESS THE KX INSIGHTS™ SOFTWARE AND DOCUMENTATION INCLUDING, BUT NOT LIMITED TO, YOUR NAME, EMAIL ADDRESS, LOCATION AND ORGANISATION, ARE TRUE AND CORRECT. YOU ACKNOWLEDGE AND AGREE THAT THIS AGREEMENT IS ENFORCEABLE AND LEGALLY BINDING.
DO NOT ACCESS KX INSIGHTS™ SOFTWARE AND DOCUMENTATION EITHER DIRECTLY OR THROUGH A THIRD PARTY (INCLUDING VIA A CLOUD PROVIDER) IF (I) YOU ARE A DIRECT COMPETITOR OF KX (II) IF, AT ANY POINT PRIOR TO, DURING OR SUBSEQUENT TO THIS AGREEMENT, YOU HAVE BEEN NOTIFIED BY KX OR ANY OF ITS AFFILIATES OF A POTENTIAL BREACH OF ANY LICENSE TERMS AGREED WITH KX OR ANY OF ITS AFFILIATES, (III) IF YOU HAVE BEEN NOTIFIED OF AN AUDIT REQUEST BY KX OR ANY OF ITS AFFILIATES (IV) AND IF, AT ANY TIME, YOU HAVE ENTERED, INTO ANY FORM OF LITIGATION OR PROCEEDINGS WHETHER THREATENED, ONGOING OR CONCLUDED (INCLUDING A SETTLEMENT) WITH KX OR ANY OF ITS AFFILIATES.
1. SCOPE OF AGREEMENT¶
1.1 This Agreement is made between KX Systems, Inc. ("KX", “we” or “We”) and you, the person or entity (“User” “you” or “You”) accessing KX Insights™ and/or any documentation (together “KXI”). KXI is a streaming analytics programme made available to you via the Google Cloud Platform at https://cloud.google.com/gcp (“GCP” or “Cloud Provider”). GCP is owned and controlled by Google, Inc.. Cloud provider means a third party that sells or leases use or partial use of computers that are under its control. KX shall not in any way be liable for the services provided to you by, which services shall be subject to and governed by a separate agreement between you and Google. Inc.. For the purposes of this Agreement, for each party, “Affiliate(s)” means any entity that directly or indirectly controls, is controlled by or is under common control with another entity. “Control” means the power to direct the management and policies of such entity, either directly or indirectly, whether through the ownership of voting securities or otherwise and the terms controlling and controlled have meanings correlative to this.
1.2 You are required to pay for access to KXI and for any usage. Payment by you for use of KXI shall be made directly by you via GCP. Subject to your GCP account being in good standing, you will be provided an instance of KXI to be used strictly by you within the GCP environment. Notwithstanding the use of KXI via GCP, we remain the owners of KXI at all times.
2. PERMITTED USE¶
2.1 Provision of Access. Subject to (i) your purchase of access to KXI and (ii) your strict compliance with the terms and conditions of this Agreement, KX hereby grants to you a limited, non-exclusive, non-transferable right, without the right to grant sublicenses, to permit you to access and use KXI via GCP solely for your internal (i) business operations or (ii) development and testing of KXI. Nothing in this Agreement shall be construed as the grant of any license or other right to you, to or in respect of any Intellectual Property or Confidential Information of KX except as expressly set forth herein. You may not access or use KXI from countries where such use is prohibited by Trade Control Laws (defined in Section 11.4 below).
3. RESTRICTIONS ON KXI USE.¶
3.1 Usage Restrictions. You undertake that: (a) your access to KXI is solely for you and you will not allow or permit another individual or entity to have any right to view, access or use KXI on your behalf; and, in the event of any such unauthorized access or use, you shall promptly notify KX; (b) you will not attempt to host KXI or permit any third party to remotely access the functionality of KXI; © you shall not view, access or use KXI in any manner or for any purpose other than the Permitted Use as set out at Section 2.1 above.
3.2 Modifications to KXI. You undertake that you will not and shall not permit another individual or entity to (a) attempt to de-compile, decode, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of KXI, or attempt to gain access to the source code of KXI or any part thereof; or (b) alter, modify, create any derivative works or improvements, whether or not patentable to KXI; © remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other Intellectual Property or proprietary rights notices provided on or with KXI, including any copy thereof; or (d) use KXI; in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property right or other right of any person or that violates any applicable law. You further agree that you (i) are responsible and liable for all uses of KXI made available to you and (ii) are responsible and liable for all actions and failures to take required actions with respect to KXI.
3.3 Transfer of KXI. KXI shall be exclusively accessed by you via GCP. You will not attempt to transfer, sell, copy, duplicate, frame, mirror, translate, republish, download, display, transmit, rent, license, sublicense, assign, publish or distribute all or any portion of KXI (in whole or in part) in any form or media or by any means.
3.4 Virus. In addition to the foregoing, you shall not access, store, distribute or transmit any Viruses, or any material during the term that (a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;(b) facilitates illegal activity;© depicts sexually explicit images;(d) promotes unlawful violence;(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or (f) is otherwise illegal or causes damage or injury to any person or property. Virus means any thing or device which may prevent, impair or otherwise adversely affect the operation of the software, or adversely affect the user experience, including worms, trojan horses, and other similar things or devices. KX reserves the right, without liability or prejudice to its other rights to you, to disable your access in the event of any breach of the provisions of Section 3.4. You agree that KX shall have no liability of any kind in any circumstances to you or a third party if KX is required to disable your access and you will indemnify KX for any third party claim it suffers due to any breach by you of Section 3.
4. KEY FILES¶
4.1 Key Files. KX shall deliver a key file that permits you to access KXI in GCP only. The key file will stop functioning upon the earlier of the following: (i) if you delay or are delinquent in the payment of the fees to GCP; (ii) upon termination of the Agreement; or (iii) in the event you are no longer an authorized user of KXI. The key file for KXI permits you to access KXI solely via your GCP environment only.
4.2 Access to KXI. Prior to accessing KXI, certain information will be reported to KX as detailed in Schedule 1 to this Agreement, which confirms that you are licensed to use KXI. 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 you are not licensed to use KXI, the license manager software will halt KXI.
4.3 Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, KX may monitor your use of KXI and collect and compile data (excluding personal data) and information related to such that is used by KX in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of KXI ("Aggregated Statistics"). As between KX and you, all right, title, and interest in Aggregated Statistics, and all Intellectual Property rights therein, belong to and are retained solely by KX. You acknowledge that KX may compile Aggregated Statistics based on user data input into KXI. You agree that KX may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics for the furtherance of its own business purposes to the extent and in the manner permitted under applicable law, provided that such Aggregated Statistics do not identify you or your Confidential Information.
4.4 No support or maintenance. Access to KXI is provided to you without any support (including consulting services) or maintenance (including error corrections), upgrades, modifications, or new releases.
4.5 Audit. KX shall be permitted to audit your pertinent records and computers and where applicable attend your facilities or the premises of the organization which you represent for the purpose of conducting inspections of your records and computers to confirm compliance with the terms of this Agreement, at any time.
5. OWNERSHIP OF KXI¶
5.1 You acknowledge and agree that KX owns all right, title and interest in KXI and any Feedback (Feedback means any comments, suggestions or proposed improvements regarding KXI, the KX business and/or its technology) and any Intellectual Property (whether registerable or unregisterable) appurtenant thereto including in any, modifications, improvements, or developments to KXI 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, 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 which subsist or will subsist, now or in the future, in any part of the world.
5.2 Your permission to use 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. You agree and acknowledge that KXI is proprietary and contains confidential and valuable trade secrets of KX, which you agree to safeguard as provided for under section 9, Confidential Information, below.
5.3 For the avoidance of doubt, you disclaim all right, title and interest in KXI (whether in whole or in part), regardless of whether KXI is embedded in an application or program developed by you. You irrevocably waive, to the extent permitted by applicable law, any and all claims you may now or hereafter have in any jurisdiction to so-called "moral rights." Such moral rights (including if KXI 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 product or application in any manner utilizes KXI or if any such application or registration includes any reference to or any aspect of KXI (whether in whole or in part) or any KX Confidential Information.
6. LIMITED WARRANTY¶
6.1 Limited Warranty. TO THE EXTENT PERMITTED BY LAW KXI IS PROVIDED “AS IS” AND THERE ARE NO EXPRESS OR IMPLIED WARRANTIES RELATING TO KXI, 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 KXI WILL BE ERROR FREE OR UNINTERRUPTED OR FREE OF HARMFUL COMPONENTS.
7.1 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 your attorney fees) for a third-party claim, suit or proceeding brought against you alleging that KXI 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 KXI) 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.
7.2 KX Options. In the event that (a) KXI is held to infringe the trademark, copyright, patent or trade secrets of a third party and the use of KXI is enjoined, (b) KX concludes that KXI infringes the trademark, copyright, patent or trade secrets of a third party, or © 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: (i) procure for you the right to continue to use KXI, (ii) replace the infringing components of KXI with other components with the same or materially similar functionality, or (iii) suitably modify KXI so that it is non-infringing and reasonably acceptable to you. If none of the foregoing options are available to KX on commercially reasonable terms, KX may terminate this Agreement without further liability to you except as provided in section 7.1 above.
7.3 Limitation. Notwithstanding the provisions of section 7.1 above, KX assumes no liability for (a) infringements arising from the combination, connection or integration of KXI with non-KX software or hardware products, including any of your products, (b) modifications to KXI made by any party other than KX or KX’s authorized representatives or which are not made under KX’s direction, © trademark infringements involving any marking or branding not applied by KX or involving any marking or branding applied at your request and not approved by KX, (d) any use of KXI outside of the GCP environment, or (e) your negligence or breach of the terms of this Agreement.
7.4 By You. You agree to indemnify and hold KX harmless against any loss, liability, damage, fine, cost or expense (including reasonable attorneys' fees) arising out (i) use of KXI in violation of the Agreement, (ii) any decision made or action taken by you on the basis of KXI or product or works produced using KXI and not caused by any fault or error with KXI, (iii) the combination of KXI with other software, systems, applications or hardware which infringes or misappropriates any third party’s Intellectual Property Rights, (iv) suits or actions arising as a result of your violation of any GCP terms, including to the extent that you use or attempt to use KXI outside of the GCP environment, or (iv) your violation of KX Intellectual Property or Confidential Information of KX.
7.5 Notwithstanding the foregoing, KX’s liability to indemnify you shall not apply to the extent that such claims suits or actions are subject to your indemnification obligations under section 7.4 above.
7.6 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 Section 7.
8. LIMITATION OF LIABILITY AND DAMAGES¶
8.1 UNLIMITED LIABILITY. NEITHER PARTY EXCLUDES OR LIMITS IN ANY WAY LIABILITY WHERE IT WOULD BE UNLAWFUL TO DO SO. THIS INCLUDES LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE OR THE NEGLIGENCE OF THE BREACHING PARTY’S EMPLOYEES, AGENTS OR SUBCONTRACTORS OR FOR FRAUD OR FRAUDULENT MISREPRESENTATION. YOU DO NOT EXCLUDE OR LIMIT YOUR LIABILITY (INCLUDING FOR DAMAGES PURSUANT TO 8.2) FOR ANY VIOLATION OF KX INTELLECTUAL PROPERTY OR CONFIDENTIAL INFORMATION INCLUDING BUT NOT LIMITED TO REPRODUCTION, USE OR DISTRIBUTION OF KXI OUTSIDE OF THE LICENSES GRANTED IN SECTION 2 ABOVE OR FOR THE INDEMNITY IN SECTION 3.4.
8.2 EXCLUSION OF DAMAGES. OTHER THAN AS EXPRESSLY STATED HEREIN, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOSS OF USE, CORRUPTION OF SOFTWARE, LOSS OR DAMAGE TO OR CORRUPTION OF DATA OR FAILURE TO STORE ANY DATA, SYSTEM INCOMPATIBILITY, FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION, LOSS OF OR DAMAGE TO GOODWILL, INTERRUPTION OF BUSINESS, LOSS OF PROFITS, LOSS OF SALES OR REVENUE, LOSS OF ANTICIPATED SAVINGS, LOSS ASSOCIATED WITH ANY TRANSACTION USING KXI, WASTED EXPENDITURE (INCLUDING PROCUREMENT COSTS AND MANAGEMENT TIME) OR ANY CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, 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.
8.3 LIMITATION OF LIABILTY. EXCEPT FOR THE OBLIGATIONS ARISING UNDER 8.1, UNDER SECTION 7.4 OR A BREACH OF SECTION 9 BY YOU FOR WHICH LIABILITY SHALL BE UNLIMITED, EACH PARTY, ITS AFFILIATES’ AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND REPRESENTATIVES’ TOTAL LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN AN ACTION IN CONTRACT OR TORT (INCLUDING NEGLIGENCE) OR ANY OTHER FORM OF ACTION (A) IN THE CASE OF CLAIMS ARISING OUT OF OR IN CONNECTION WITH SECTION 7.1, WILL NOT EXCEED US $50,000 AND (B) IN THE CASE OF ALL OTHER MATTERS, WILL NOT EXCEED US $10,000.
8.4 Entire Financial Liability. FOR THE AVOIDANCE OF DOUBT THIS SECTION 8 SETS OUT THE ENTIRE 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¶
9.1 Confidential Information. As used in this Agreement, the term "Confidential Information" means (a) information, in any form, disclosed by one party to the other 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) KXI including any Intellectual Property appurtenant thereto, but shall exclude Aggregated Statistics (defined in section 4.3).
9.2 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, provided however with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law) such obligations of non-disclosure will survive the termination or expiration of this Agreement for so long as such Confidential Information remains subject to trade secret protection under applicable law. Each 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, and the party disclosing the information to such third party shall remain responsible for such third party’s compliance with those confidentiality obligations. 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.
9.3 Exceptions. The foregoing restrictions will not apply to information that (a) is known to the receiving party at the time of communication to the receiving party, (b) has become publicly known through no wrongful act of the receiving party, © has been rightfully received from a third party authorized to make such communication without restriction, (d) has been independently developed by the receiving party, (e) has been approved for release by written authorization of the communicating party, or (f) 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.
9.4 KXI Performance. You shall not distribute or otherwise make available to any third party any report regarding the performance of KXI or any report which contains a competitive analysis, KXI benchmarks or any information from such a report, except as explicitly authorized by KX in writing.
10. TERM AND TERMINATION¶
10.1 Term and Modified Terms. Except as provided in sections 10.2, 10.3 and 10.4, this Agreement will remain in force.
10.2 Termination for Cause. Either party may terminate this Agreement at any time upon written notice to the other party if (a) the other party materially breaches any provision of this Agreement (b) the other party becomes insolvent, © the other party makes an assignment for the benefit of creditors, or (d) 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.
10.3 Termination for Convenience. Either party may terminate this Agreement at any time upon 10 business days’ written notice to the other party for convenience.
10.4 KX Termination. KX may terminate this Agreement at any time if (a) your use of KXI is contrary to the terms of this Agreement, (b) you fail to pay any fee or any other amount that is due to GCP in connection with your use of KXI; © KX no longer provides KXI via GCP or (d) GCP is no longer an available platform. Termination of this Agreement by KX for the foregoing shall in no way relieve you from your obligation to pay any sums accrued or due prior to the date of such termination.
10.5 Effect of Termination. Upon termination of this Agreement, you shall immediately discontinue use of KXI and certify in writing to KX that such access has ceased.
10.6 Amendments to the Agreement. KX may amend this Agreement at any time. This Agreement shall apply until you download or are provided by us or via GCP with a revised version of the Agreement. You acknowledge and agree that by continuing to use KXI 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. No modification by you is effective unless it is in writing and signed by authorized representatives of both parties.
10.7 Surviving Provisions of Agreement. The provisions of section 5 (“Ownership of KXI”), section 6 (“Limited Warranty”), section 7 (“Indemnification”), section 8 (“Limitation of Liability and Damages”), section 9 (“Confidential Information”), 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¶
11.1 Assignment and Successors. You are not permitted to assign any of the rights nor delegate any of the obligations under this Agreement to any third party without the express written consent of KX. This prohibition extends to any company reorganization or merger or the sale of your business or its assets to a third party.
11.2 Third Party Software. KX has the right to license KXI to you in compliance with the licenses of any Third-Party Software contained in KXI. “Third Party Software” means third party software or open-source software or components which are included with KXI and identified in the documentation. Third Party Software will at all times be owned by the applicable third party and will be subject to any applicable third-party license terms. You agree to comply with such licenses and that such licenses will apply in lieu of the terms of the Agreement with respect to such Third-Party Software, including any provisions governing access to source code, modification or reverse engineering.
11.3 Anti-Bribery. You 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.
11.4 Export. You acknowledge that KXI is subject to US export control and economic sanctions laws and regulations and to import laws, regulations and requirements of certain foreign governments (“Trade Control Laws”). You agree to fully comply with those Trade Control Laws in connection with KXI including where applicable assisting in obtaining any necessary governmental approvals, licenses and undertakings. Without prejudice to the generality of this clause, you will not, and will not allow any third-party, to use, export, re-export or transfer, directly or indirectly, of any part of KXI in violation of any Trade Control Laws. A listing of U.S. Export Control Classification Numbers and U.S. license exceptions, to the extent applicable to KXI, is available at the following website: Export Statement - KX. You represent and warrant that you shall ensure (i) KXI will not be used for any purposes associated with chemical, biological or nuclear weapons or missiles or unmanned aerial vehicles capable of delivering such weapons, nuclear explosive activity or unsafeguarded nuclear fuel cycle, or any military-intelligence activity nor will it be resold (if reselling or sublicensing is permitted under the Agreement) if you know or suspect that it is intended or likely to be used for such a purpose; and (ii) KXI will not be used, exported, re-exported or otherwise re-sold or transferred to a destination subject to US, UN, EU, UK or OSCE embargo where that act would be in breach of the terms of that embargo (including but not limited to the Crimea region of Ukraine, Cuba, Iran, North Korea and Syria) (“Embargoed Countries”); and (iii) KXI will not be used, exported, re-exported or otherwise re-sold or transferred to any party (a) listed on any U.S. or applicable U.S. sanctions or export-related restricted or prohibited party list, including but not limited to the Specially Designated Nationals and Blocked Persons List maintained by the U.S. Department of the Treasury, the UN Security Council Consolidated List, and the EU Consolidated List, and the UK Office of Financial Sanctions Implementation’s Consolidated Financial Sanctions List; (b) any party that is, in the aggregate, 50% or greater owned, directly or indirectly, or otherwise controlled by parties described in (a); © the Entity, Denied Persons and Unverified Lists maintained by the U.S. Department of Commerce; or (d) any party that is legally organized in, having a principal place of business in, or ordinarily resident in an Embargoed Country. Any dispute in relation to this section 11.4 shall be governed in accordance with section 11.6 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 KXI, or perform support or services, due to an embargo, trade sanction or other comparable restrictive measure.
11.6 General. This is the only Agreement between you and KX relating to your access to KXI via GCP. The parties to this Agreement are independent contractors. Nothing contained herein or done pursuant to this 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 shall 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. 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. 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. 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). You hereby waive 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 you of the provisions of sections 2, 3 or 5 and/or payment obligations 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. You and the organisation which you represent and have bound to the terms of this Agreement shall be jointly and severally liable for the obligations under this Agreement. This Agreement constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and 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 you or any representative from the organisation which you have bound under this Agreement, and any understandings or other communications between the parties in connection with this Agreement. KX reserves all rights not expressly granted to you in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to you or any third party. 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. You agree that KXI 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 KXI by a U.S. government agency shall be prohibited except as expressly permitted by this Agreement, which terms shall govern.
11.7 Third Party Dependencies. You accept and agree that KXI may require you to have third party software and web services installed for KXI to operate which may be identified by us in the documentation as “Dependencies”. Such Dependencies are made available by third parties and are subject to terms and conditions between you and those third parties. Dependencies licensed by you are not part of KXI and this Agreement does not apply to them (regardless if we recommend or reference such software in our documentation or if we facilitate the delivery to you). You will ensure that you are using the version of the Dependencies recommended by us in the documentation or otherwise noted by us as being the optimal version of the Dependencies to be used for or in connection with KXI. Under no circumstances, shall we be liable for any Dependencies operated or used by you or any failure by you to install or use the recommended version of the Dependencies.
Information Reported to KX
The following KXI variables are reported (which are upon notice, subject to change):
- 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/.z.k)
- number of slave tasks (\s)
- port number (\p)
- license (.z.l)
- cpu mask as in sched_getaffinity(2)
- cpu usage as in getrusage(2)
- installed RAM (.Q.w`mphy)
- boot ID (/proc/sys/kernel/random/boot_id)