Serverless Kdb+ Software End User Agreement
CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS. BY ACCESSING THE KDB+ SOFTWARE VIA AWS LAMBDA SERVERLESS APPLICATION REPOSITORY YOU AGREE 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 OR FOR A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY (WHETHER DIRECTLY OR INDIRECTLY OR AS AN EMPLOYEE, AGENT, CONTRACTOR, CONSULTANT OR AUTHORISED THIRD PARTY), YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON THEIR BEHALF AND YOU ACCEPT AND AGREE THAT YOU BOTH SHALL BE BOUND BY THIS AGREEMENT. YOU WARRANT THAT THE IDENTIFICATION DETAILS THAT YOU PROVIDE TO KX TO ACCESS THE KDB+ SOFTWARE INCLUDING BUT NOT LIMITED TO NAME, EMAIL ADDRESS, LOCATION, ORGANISATION, AMAZON LAMBDA ACCOUNT ID AND PAYMENT INFORMATION IS TRUE AND CORRECT. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN AGREEMENT SIGNED BY YOU AND LEGALLY BINDING BETWEEN YOU AND KX SYSTEMS, INC. IF YOU DO NOT AGREE TO THIS AGREEMENT 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
1.1 This Serverless 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 to run on AWS Lambda ("AWS Lambda") supplied via the AWS Serverless Application Repository at https://aws.amazon.com/serverlessrepo ("AWS SAR"). AWS SAR and AWS Lambda are owned and controlled by Amazon Web Services, Inc. You are required to have an AWS Lambda account in good standing prior to accessing the Serverless Kdb+ Software. Kx shall not in any way be liable for the services provided to you by Amazon Web Services, Inc.
1.2 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 access within AWS Lambda. 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 to Kx in accordance with section 5 of this Agreement. Subject to your AWS Lambda account being in good standing, you will be provided an instance of the Kdb+ Software to be used strictly by you within the AWS Lambda environment. The Kdb+ Software includes any Updates (defined below) and/or any documentation provided to you in the AWS Lambda environment by Kx.
1.3 This Agreement sets forth the terms on which Kx will permit you to use the Kdb+ Software within AWS Lambda. We do not sell or license (except as otherwise permitted under this Agreement) the Kdb+ Software or any documentation to you. We remain the owners of the Kdb+ Software and any documentation at all times.
3. RESTRICTIONS ON KDB+ SOFTWARE USE.
3.1 Usage Restrictions. You undertake that: (a) You will not allow or permit another individual or entity to have any right to access or use the Kdb+ Software nor to use the Kdb+ Software on your behalf; and, in the event of any such unauthorized access or use, you shall promptly notify Kx. (b) In the event that you develop an application or program, utilizing Kdb+ Software, you will not (i) attempt to host an 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 (ii) attempt to host that application or program on AWS Lambda for any third party or (iii) permit a third party to remotely access the functionality of the application or program.
3.2 Modifications to Kdb+ Software. You will not, and you will not permit any third party to attempt to (i) use the Kdb+ Software beyond the scope of the license granted under Section 2 (ii) de-compile, reverse compile, disassemble, decode, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Kdb+ Software or attempt to gain access to the source code of the Kdb+ Software or any part therof (iii) modify, duplicate translate, adapt or frame, mirror, republish, download, 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 or otherwise create derivative works or improvements whether or not patentable to the Kdb+ Software or any documentation (iv) 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 Kdb+ Software or documentation, including any copy thereof.
3.3 Safeguard 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 10, Confidential Information, below.
3.4 Competitive analysis. You will not, and will not permit any third party to use the Kdb+ Software or documentation for purposes of competitive analysis or benchmarking of the Kdb+ Software, the development of a competing software product or service, or any other purpose that is to Kx's commercial disadvantage.
3.5 Transfer of the Kdb+ Software. The Kdb+ Software is only permitted to be accessed by you via AWS Lambda. You will not attempt to display, rent, lease, copy, duplicate, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available all or any portion of the Kdb+ Software (in whole or in part), or any features or functionality of the Kdb+ 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.
3.6 Responsibility for Use of the Kdb+ Software. You are responsible and liable for all uses of the Kdb+ Software and documentation provided to you by Kx via your Amazon Lambda account. You are responsible and liable for all actions and failures to take required actions with respect to the Kdb+ Software and documentation provided to you.
4. KEY FILES AND UPDATES
4.1 Log-In Credentials and Key Files. You are required to provide Kx with log-in credentials which shall include your full name, the name of the entity you represent, a valid email address, billing address, a valid payment method (which may require your credit card details for billing purposes), and your AWS Lambda account ID. You shall indemnify Kx for any losses or damages that Kx suffers as a result of any misleading, inaccurate or false information or log in credentials that you provide to Kx.
4.2 Key Files. Kx shall deploy to your AWS Lambda account a key file that permits the User to access the Kdb+ Software in AWS Lambda only. The key file will stop functioning upon the earlier of (i) in the event you delay or are delinquent in the payment of the fees to Kx (ii) termination of the Agreement (iii) you are no longer an authorized user of the Kdb+ Software (iv) temporary suspension of the Kdb+ Software in accordance with section 11.4. The key file for the Kdb+ Software permits you to access the Kdb+ Software solely via AWS Lambda. Key files are provided for your internal use only and you will not sell, transfer or sublicense them to any other entity or person.
4.3 Access to the Kdb+ Software. Prior to access being provided to the Kdb+ Software, certain information will be reported to Kx from your AWS Lambda account as detailed in the Schedule to this Agreement. This information confirms that you are licensed to use the Kdb+ Software and calculates your usage of the Kdb+ Software. You will not attempt to interfere, delay or in any way restrict the reporting to the Kx server. If the Kx license manager software determines that the Kdb+ Software is not authorized to your AWS Lambda account, the license manager software will halt the instance of Kdb+ Software that you are using in AWS Lambda.
4.4 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 AWS SAR.
4.5 No support or maintenance. Access to the Kdb+ Software is provided to you without any support (consulting services) or maintenance (error corrections).
4.6 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.
5.1 License Fees. Kx calculate and bill fees and charges monthly. The fees to use the Kdb+ Software are available at https://serverless.kx.com/awslamba-rates. We may bill you more frequently for fees accrued if we suspect that your account is fraudulent or at risk of non-payment. All amounts payable by you under this Agreement will be paid to us without setoff or counterclaim, and without any deduction or withholding.
5.2 Updated Fees. Fees and charges may be updated from time to time and will be effective when we post the updated fees and charges on https://serverless.kx.com/awslamba-rates, unless we expressly state otherwise in a notice.
5.3 Overdue Amounts. We may elect to charge you interest on all late payments at the rate of 4% per annum above Bank of America's base rate from time to time. Such interest shall accrue daily from the due date until actual payment of the overdue amount, whether before or after judgment. You shall pay the interest together with the overdue amount.
5.4 Taxes. Each party will be responsible, as required under applicable law, for identifying and paying all taxes and other governmental fees and charges (and any penalties, interest, and other additions thereto) that are imposed on that party upon or with respect to the transactions and payments under this Agreement. All fees payable by you are exclusive of applicable taxes and duties, including, without limitation, VAT, Service Tax, GST, excise taxes, sales and transactions taxes, and gross receipts tax. All payments made by you to us under this Agreement will be made free and clear of any deduction or withholding, as may be required by law. If any such deduction or withholding (including but not limited to cross-border withholding taxes) is required on any payment, you will pay such additional amounts as are necessary so that the net amount received by us is equal to the amount then due and payable under this Agreement. We will provide you with such tax forms as are reasonably requested in order to reduce or eliminate the amount of any withholding or deduction for taxes in respect of payments made under this Agreement.
6. OWNERSHIP of Kdb+ software
6.1 User acknowledges and agrees that the Kdb+ Software and documentation are provided under license, and not sold, to you. User does not acquire any ownership interest in the Kdb+ Software or documentation under this Agreement, or any other rights thereto, other than to use the same in accordance with the license granted and subject to all terms, conditions, and restrictions under this Agreement.
6.2 Kx owns all right, title and interest in the Kdb+ Software, documentation, key files and any Intellectual Property (whether registerable or unregistrable) 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.)
6.3 The use by User of such Intellectual Property is authorized only for the purposes set forth herein and upon termination of this Agreement for any reason, such authorization will automatically cease.
6.4 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 sections 6.1 and 6.2 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) or any Kx Confidential Information.
7. LIMITED WARRANTY
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 OR FREE OF HARMFUL COMPONENTS, or THAT ANY CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR ALTERED.
8.1 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 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 gives 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.
8.2 Kx Options. In the event that (a) 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, (b) Kx concludes that the Kdb+ Software infringes the trademark, copyright, patent or trade secret s of a third party, or (c) in the case of settlement as referred to in section 8.1 above, Kx may, if possible on commercially reasonable terms, at its own expense and option: (i) procure for the User the right to continue to use the Kdb+ Software, (ii) 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 (iii) 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 8.1 above
8.3 Limitation. Notwithstanding the provisions of section 8.1 above, Kx assumes no liability for (a) infringements arising from combinations of the Kdb+ Software with non-Kx software or hardware products, including any of User's products, (b) modifications to the Kdb+ Software made by any party other than Kx or Kx's authorized representative or made under Kx's direction, (c) 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 (d) 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 (e) any use of the Kdb+ Software outside of the AWS Lambda environment.
8.4 By User. User agrees to indemnify and hold Kx its affiliates and licensors, and each of their respective employees, officers, directors, and representative 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 (i) unauthorized use of the Kdb+ Software (ii) unauthorized use or access to the Kdb+ Software by a party or entity other than the User (iii) 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 AWS Lambda environment (iv) third party infringement claims, suits or actions against Kx as a result of the User's use of the Kdb+ Software (v) breach of this Agreement or violation of applicable law by the User. You will reimburse us for reasonable attorneys' fees, as well as our employees' and contractors' time and materials spent responding to any subpoena or other compulsory legal order or process associated with the events described in (i) through (v) above.
8.5 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 8.4 above.
9. limitation of Liability and damages
9.1 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.
9.2 Limitation of Liability. OTHER THAN AS EXPRESSLY STATED HEREIN, IN NO EVENT SHALL KX OR ITS AFFILIATES BE LIABLE FOR ANY COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DELAY, OR INABILITY TO USE THE SOFTWARE, LOSS OR CORRUPTION OF DATA, LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, 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, LOSS OF GOODWILL INTERRUPTION OF BUSINESS, LOST PROFITS , LOSS OF SALES OR REVENUE, LOSS OF ANTICIPATED SAVINGS, LOSS OF OR DAMAGE TO GOODWILL, 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.
9.3 Limitation of Damages. EXCEPT FOR THE PARTIES' OBLIGATIONS UNDER SECTION 6 ("OWNERSHIP OF KDB+ SOFTWARE"), SECTION 8 ("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, a breach of confidential information (section 10), FRAUD OR FRADULENT 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 US $10,000.
9.4 Entire Financial Liability. FOR THE AVOIDANCE OF DOUBT THIS SECTION 9 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.
9.5 Survival. The parties agree that the limitations in this section 9 shall survive and apply even if any limited remedy in this Agreement is found to have failed of its essential purpose. You acknowledge that you have not relied on any representations made by Kx in entering into or commencing any activity under this Agreement.
10. CONFIDENTIAL INFORMATION
10.1Confidential Information. As used in this Agreement, the term "Confidential Information" means (a) information disclosed in writing by Kx and marked confidential, (b) information disclosed orally by Kx to you and summarized in writing and marked confidential within thirty (30) days of such oral disclosure, and (c) the Kdb+ Software, key files and documentation including any Intellectual Property appurtenant thereto.
10.2Non-Disclosure. 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 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, 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.
10.3Exceptions. The foregoing restrictions will not apply to information that (a) is known to User at the time of communication, (b) has become publicly known through no wrongful act of User, (c) has been rightfully received from a third party authorized to make such communication without restriction, (d) has been independently developed by the User, (e) has been approved for release by written authorization of Kx, or (f) is required by law to be disclosed; provided that if you are 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.
10.4Benchmark Test Results. User agrees not to disclose benchmark, test or performance information regarding the Kdb+ Software to any third party nor to distribute or otherwise make available to any third party any report regarding the performance of the Kdb+ Software except as explicitly authorized by Kx in writing in advance. You will not issue any press release or make any other public communication with respect to this Agreement or your use of the Kdb+ Software.
11. Term and Termination
11.1 Term. Except as provided in sections 11.2, 11.3 and 11.4 below so long as User has paid its fees to Kx, this Agreement will remain in force notwithstanding that it may be modified or updated pursuant to section 11.5.
11.2 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 hereof and fails to cure such breach within thirty (30) days after receiving written notice of such breach, (b) the other party becomes insolvent, (c) 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.
11.3 Kx Termination. Kx shall terminate at any time if (a) User's use of the Kdb+ Software is contrary to the terms of this Agreement, (b) User fails to pay the fee or any other amount that is due to Kx (c) Kx no longer provides the Kdb+ Software via AWS Lambda. Termination of this Agreement by Kx for the foregoing shall in no way relieve the User form its obligation to pay any sums accrued or due prior to the date of such termination.
11.4 Temporary Suspension. Kx may suspend your right to access or use of the Kdb+ Software if we determine that you (i) pose a security risk to Kx or any third party (ii) your access or use could adversely impact our software, (iii) could subject us, our affiliates, or any third party to liability, or (iv) usage could be fraudulent.
11.5 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 Kdb+Software in Amazon Lambda with revised license terms (ii) a representative or colleague from the entity which you represent downloads a revised version of the Kdb+ Software with revised license terms (iii) you are notified by Kx of a change in the license terms. If an event described in sub clauses (i) through to (iii) occurs, you acknowledge and agree that by continuing to use the Kdb+ Software, you agree to be bound by the revised terms from the date they are modified.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.
11.6 Surviving Provisions of Agreement. The provisions of section 6 ("Ownership of Kdb+ Software"), section 7 ("Limited Warranty"), section 8 ("Indemnification"), section 9 ("Limitation of Liability and Damages"), section 10 ("Confidential Information"), section 11 ("Term and Termination") and Section 12 ("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.
12. additional provisions
12.1 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.
12.2 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.
12.3 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.
12.4 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 to not use the Regulated Software for a) the development, design, manufacture or production of nuclear, chemical or biological weapons of mass destruction; b) 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") c) You are not a citizen, national or resident of and are not under the control of a US Embargoed Country; d) You will not attempt to and will not download or otherwise export for re-export the Regulated Software e) 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. For clarity, you are solely responsible for compliance in using and accessing the Kdb+ Software and the compliance in the region in which any of the foregoing occurs. You shall be responsible for any breach of this section 12.4 by its, and its successors' and permitted assigns', parent, affiliates, employees, officers, directors, customers, agents, distributors, resellers, or vendors.
12.5 Independent Contractors. This is the only Agreement between User and Kx relating to User's access to the Kdb+ Software via Amazon Lambda. 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 AWS or AWS Lambda.
12.6 Governing Law. 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 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. 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 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. 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.
12.7 Severability and Counterparts. 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.
12.8 Waiver. 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.
12.9 Force Majeure. 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.
12.10 U.S. Government Use of Software. 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.
12.11 Security. Kx will implement reasonable and appropriate measures designed to help you secure your information against accidental or unlawful loss, access or disclosure.
12.13 Conflict. 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 your access to the Kdb+ Software via Amazon Lambda. Notwithstanding the foregoing, if you have entered into a separate software license agreement with First Derivatives Plc or Kx for use of the Kdb+ Software, that software license agreement remains in full force and effect and its terms shall prevail over any conflicting terms of this Agreement.
12.14 Joint and Several Liability. You and the organisation which you represent and have bound to the terms of this Agreement shall both be jointly and severally liable for each of your respective obligations under this Agreement.
Information Reported to Kx The following Kdb+ Software variables are reported by the to the license manager software (which are upon notice, subject to change):
UTC timestamp (.z.p)
IP address (.z.a)
OS version (.z.o)
process ID (.z.i)
user ID (.z.u)
kdb+ version (.z.K)
number of slave tasks (\s)
port number (\p)
cpu mask as in sched_getaffinity(2)
cpu usage as in getrusage(2)