No Fee, Non-Commercial Use, 32 Bit Kdb+ Software License Agreement (rev. 13 Sep 2015)
CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS. BY DOWNLOADING THE 32 Bit KDB+ SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT DOWNLOAD THE SOFTWARE.
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This No Fee, Non-Commercial Use, 32 Bit Kdb+ Software License Agreement ('Agreement') is made between Kx Systems, Inc. ('Kx') and you, the User, with respect to the 32 bit version of Kx's Kdb+ Software made available for download at http://kx.com/software-download.php (the '32 Bit Kdb+ Software'). The 32 Bit Kdb+ Software includes any updates and/or any documentation provided to you by Kx. You agree to use the 32 Bit Kdb+ Software under the terms and conditions set forth below.
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1. DEFINITIONS
The terms defined in this section 1 and any other capitalized terms defined in other sections of this Agreement shall have the meanings stated.
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1.1. 'Commercial Use' means any use of the 32 Bit Kdb+ Software for the User or any third party's financial gain or other economic benefit. Any Beta-testing or production use of a User Application is Commercial Use. Notwithstanding the foregoing, the following are not Commercial Uses: (a) use solely for educational or personal purposes; (b) use by a registered charity or licensed educational institution, (c) development of a proof-of-concept application, even in a commercial setting; and (d) any use for which Kx has granted the User written permission.
2. LICENSE GRANT AND RESTRICTIONS
2.1. Application Development License. Kx hereby grants User a non-transferable, non-exclusive license, without right of sublicense, to copy and install the 32 Bit Kdb+ Software on the hard disk or other permanent storage media of one or more computers and to make non-Commercial Use the 32 Bit Kdb+ Software to develop, test and run applications into which the 32 Bit Kdb+ Software is embedded ('User Applications').
2.2. 32 Bit Kdb+ Software Use Restrictions
(a) Generally. User may not: (i) modify the 32 Bit Kdb+ Software, (ii) sell, lease, license or distribute the 32 Bit Kdb+ Software to any third party, or (iii) attempt to decompile or reverse engineer the 32 Bit Kdb+ Software.
(b) No Distribution or Hosting. The User may not distribute or host the 32 Bit Kdb+ Software or User Applications to or for any third party.
(c) 32 Bit Kdb+ Software Evaluations. User shall not distribute or otherwise make available to any third party any report regarding the performance of the 32 Bit Kdb+ Software, 32 Bit Kdb+ 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.
2.3. 32 Bit Kdb+ Software Time-Out. Kx reserves the right to insert a time-out function into the 32 Bit Kdb+ Software that will cause it to halt after a specific period of time (e.g. two hours), requiring the software to be re-started.
3. INTELLECTUAL PROPERTY OWNERSHIP RIGHTS
User acknowledges and agrees that Kx owns all rights, title and interest in the 32 Bit Kdb+ 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 32 Bit Kdb+ Software. 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.
4. NO SUPPORT OR MAINTENANCE
The 32 Bit Kdb+ Software is licensed to User without any support (consulting services) or maintenance (error corrections).
5. FEES
The 32 Bit Kdb+ Software is licensed to the User without charge.
6. NO WARRANTY
The 32 Bit Kdb+ Software is provided 'As Is.' KX expressly disclaims and negates all warranties for the 32 Bit Kdb+ Software, whether expressed, implied, statutory or otherwise, and Kx specifically disclaims any implied warranties of merchantability fitness for a particular purpose, non-infringement of intellectual property or other violations of rights. Kx does not warrant that the 32 Bit Kdb+ Software will meet the User requirements or that the operation of the 32 Bit Kdb+ Software will be uninterrupted or error free. The 32 Bit Kdb+ Software may include versions for which no 64 bit version is available from Kx currently or in the future.
7. INDEMNIFICATION
7.1. By Kx. Kx shall have the right, but not the obligation, to defend, or at its option settle at its own expense, any claim, suit or proceeding brought against User alleging that the 32 Bit Kdb+ Software infringes any copyright, trademark or 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, and, if Kx elects to defend the claim or suit, Kx agrees to pay, subject to the limitations hereinafter set forth, any settlement fees or final judgment and attorney's fees entered against User on such issue in any such suit or proceeding. User agrees 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. User shall not be liable for any costs or expenses or other obligations incurred as the result of a settlement (other than return of the 32 Bit Kdb+ Software) without its prior written authorization. Kx shall not have any liability for any settlement entered into by User unless Kx has consented to such settlement in writing.
7.2. Kx Options. In the event that (a) the 32 Bit Kdb+ Software is held to infringe the rights of a third party, Kx has the right to terminate this Agreement without further liability to User except as provided in section 7.1 above. User will cooperate with Kx in the return of the 32 Bit Kdb+ Software.
7.3. Limitation. Notwithstanding the provisions of section 7.1 above, Kx assumes no liability for (a) infringements arising from combinations of the 32 Bit Kdb+ Software with non-Kx software or hardware products, including any of User's products, (b) modifications to the 32 Bit Kdb+ Software made by any party other than Kx, or (c) 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.
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7.4. Entire Liability. The foregoing provisions of the section 6 state the entire liability and obligations of Kx with respect to any alleged infringement of patents, copyrights, trademarks or other intellectual property rights by the 32 Bit Kdb+ Software or any part thereof.
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7.5. By User. User agrees to indemnify and hold Kx harmless against any cost, loss, liability or expense (including reasonable attorneys' fees) arising out of third party claims against Kx as a result of the User's use of the 32 Bit Kdb+ Software unless such claims are subject to Kx's indemnification rights as set forth in section 7.1 above.
8. 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 32 Bit KDB+ 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.
(b) No Distribution or Hosting. The User may not distribute or host the 32 Bit Kdb+ Software or User Applications to or for any third party.
(c) 32 Bit Kdb+ Software Evaluations. User shall not distribute or otherwise make available to any third party any report regarding the performance of the 32 Bit Kdb+ Software, 32 Bit Kdb+ 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.
2.3. 32 Bit Kdb+ Software Time-Out. Kx reserves the right to insert a time-out function into the 32 Bit Kdb+ Software that will cause it to halt after a specific period of time (e.g. two hours), requiring the software to be re-started.
3. INTELLECTUAL PROPERTY OWNERSHIP RIGHTS
User acknowledges and agrees that Kx owns all rights, title and interest in the 32 Bit Kdb+ 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 32 Bit Kdb+ Software. 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.
4. NO SUPPORT OR MAINTENANCE
The 32 Bit Kdb+ Software is licensed to User without any support (consulting services) or maintenance (error corrections).
5. FEES
The 32 Bit Kdb+ Software is licensed to the User without charge.
6. NO WARRANTY
The 32 Bit Kdb+ Software is provided 'As Is.' KX expressly disclaims and negates all warranties for the 32 Bit Kdb+ Software, whether expressed, implied, statutory or otherwise, and Kx specifically disclaims any implied warranties of merchantability fitness for a particular purpose, non-infringement of intellectual property or other violations of rights. Kx does not warrant that the 32 Bit Kdb+ Software will meet the User requirements or that the operation of the 32 Bit Kdb+ Software will be uninterrupted or error free. The 32 Bit Kdb+ Software may include versions for which no 64 bit version is available from Kx currently or in the future.
7. INDEMNIFICATION
7.1. By Kx. Kx shall have the right, but not the obligation, to defend, or at its option settle at its own expense, any claim, suit or proceeding brought against User alleging that the 32 Bit Kdb+ Software infringes any copyright, trademark or 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, and, if Kx elects to defend the claim or suit, Kx agrees to pay, subject to the limitations hereinafter set forth, any settlement fees or final judgment and attorney's fees entered against User on such issue in any such suit or proceeding. User agrees 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. User shall not be liable for any costs or expenses or other obligations incurred as the result of a settlement (other than return of the 32 Bit Kdb+ Software) without its prior written authorization. Kx shall not have any liability for any settlement entered into by User unless Kx has consented to such settlement in writing.
7.2. Kx Options. In the event that (a) the 32 Bit Kdb+ Software is held to infringe the rights of a third party, Kx has the right to terminate this Agreement without further liability to User except as provided in section 7.1 above. User will cooperate with Kx in the return of the 32 Bit Kdb+ Software.
7.3. Limitation. Notwithstanding the provisions of section 7.1 above, Kx assumes no liability for (a) infringements arising from combinations of the 32 Bit Kdb+ Software with non-Kx software or hardware products, including any of User's products, (b) modifications to the 32 Bit Kdb+ Software made by any party other than Kx, or (c) 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.
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7.4. Entire Liability. The foregoing provisions of the section 6 state the entire liability and obligations of Kx with respect to any alleged infringement of patents, copyrights, trademarks or other intellectual property rights by the 32 Bit Kdb+ Software or any part thereof.
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7.5. By User. User agrees to indemnify and hold Kx harmless against any cost, loss, liability or expense (including reasonable attorneys' fees) arising out of third party claims against Kx as a result of the User's use of the 32 Bit Kdb+ Software unless such claims are subject to Kx's indemnification rights as set forth in section 7.1 above.
8. 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 32 Bit KDB+ 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.
9. TERM AND TERMINATION OF AGREEMENT; MODIFICATION OF THE AGREEMENT
9.1. Term and Renewal Subject to Revised Terms. This Agreement shall continue until the beginning of the next calendar year or until User is notified by Kx of a change in the Agreement terms. At the beginning of each calendar year, the Agreement shall automatically renew for an additional year, but subject to any revised terms as set forth at http://kx.com/software-download.php. If at any time during the calendar year, Kx notifies user by email or otherwise that the terms of the Agreement have been modified, the Agreement shall continue for the remainder of the year, but subject to such modified terms.
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9.2. Termination for Breach. This Agreement shall automatically terminate immediately if the User materially breaches any of its terms. Upon any termination of this Agreement, User shall destroy all copies of the 32 Bit Kdb+ Software in his possession.
10. GENERAL
This is the only Agreement between User and Kx relating to the 32 Bit Kdb+ Software. This Agreement shall be governed by California law, except as to copyright matters covered by Federal law. This Agreement is deemed entered into at Palo Alto, California by both parties. Any dispute related to this Agreement shall be resolved only in the California State Courts or Federal Courts located in Santa Clara County, California, and User hereby waives any objections to venue in those courts. Should any provision of this Agreement be declared unenforceable in any jurisdiction, then such provision shall be deemed to be severed from this Agreement and shall not affect the remainder hereof. User agrees and certifies that the 32 Bit Kdb+ 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, or will the 32 Bit Kdb+ Software be used for any purpose prohibited by the same.
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End of License Agreement
