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Nature of Kynex Tool. Kynex has developed a proprietary suite of software tools and data used to analyze and model financial scenarios related to convertible securities, or has acquired the right from third parties to use such software and data (the “Kynex Tool”). Title in and ownership of all software, data, documentation techniques, algorithms, ideas, specifications, information, databases, and other proprietary materials related to or constituting the Kynex Tool (collectively, “Kynex Proprietary Materials”), including all patent, copyright, trademark, trade secret and other proprietary rights, remains with Kynex and its licensors. Except for the limited access rights expressly granted to paying subscribers under this Agreement, no license, express or implied, is granted to any person or entity.
Subscription. You may purchase a subscription for access to the Kynex Tool by completing the registration form on our website and/or contacting Kynex at 201.796.4900 or firstname.lastname@example.org. Upon payment of the applicable Subscription Fees (defined below), you will be given a user ID and password for your own personal use, if you are an individual user, or for each end-user licensed to access and use the Kynex Tool, if you are a business entity purchasing access for multiple users. Each user ID and password may only be used by the named individual for whom you have paid the applicable Subscription Fees. You will be responsible for the confidentiality and use of all of your user ID(s) and password(s), and you will be held solely responsible for all unauthorized use thereof. You must immediately notify Kynex if you become aware of the loss or theft of, or any unauthorized use of, any user IDs, passwords or the Kynex Tool.
Fees and Payments. Kynex will invoice you for all subscription fees and other charges (“Subscription Fees”) and other charges, and all Subscription Fees and charges are due within thirty (30) days of Kynex’s issuing the applicable invoice. Kynex may from time-to-time revise the Subscription Fees or fee structure. The Subscription Fees will not be adjusted for any period for which you have paid the Subscription Fees in advance. Any fee not paid when due will bear interest at the rate of one and one half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is lower. If you are more than fifteen (15) days past due in payment of any fees due under this Agreement, Kynex may suspend your right to use the Kynex Tool. During any such suspension, Kynex may block all access to the Kynex Tool through any or all of your assigned user ID(s) and/or password(s). Kynex will not reactivate an account that has been suspended for nonpayment until the balance due on the account has been paid in full, or sufficient arrangements for payment have been made that are acceptable to Kynex. Subscription Fees will continue to accrue during any period of suspension. Suspension of access does not relieve your obligation to pay any fees owing hereunder.
Subscription Period. Subject to your payment of the applicable Subscription Fees and acceptance of this Agreement, your subscription will commence on the date agreed in your order with Kynex and continue until you provide Kynex with at least thirty (30) days written notice of termination, or unless Kynex otherwise terminates this Agreement in accordance with the provisions hereof. The period of your subscription is the “Subscription Period.” Upon termination of the Subscription Period by either you or Kynex, your rights under this Agreement will immediately terminate and your ID(s) and password(s) will no longer be valid. If the Subscription Period is terminated other than for your breach, Kynex will refund any pre-paid Subscription Fees, prorated monthly. Upon any termination or expiration of this Agreement, you shall: (1) cease all use of the Kynex Tool; and (2) continue to comply with the confidentiality requirements set forth in this Agreement. Kynex may immediately and without notice suspend your right to use the Kynex Tool and/or terminate this Agreement for your breach of this Agreement. If Kynex is actually aware of any event or circumstances that will result in Kynex ceasing to continue in the business of providing access to the Kynex Tool, if permitted do so, Kynex will provide you with prior notice of such to the extent that it is reasonably practicable to do so.
Grant of Access. Kynex grants you the limited, nonexclusive, non-transferable, revocable right to access and use the Kynex Tool via a compatible browser using your assigned user ID(s) and password(s), solely for your internal business purposes, by only the number of named end-users for which you have paid the applicable Subscription Fees, all subject to and in accordance with this Agreement. Other than the technology constituting the Kynex Tool, you are responsible for providing, at your expense, all communication lines, hardware, software, services and other materials and technology necessary to access or use the Kynex Tool. Kynex shall have no responsibility for any failure of such items or any failure or limitation of the Internet or other computer hardware or software.
Limitations on Use. You shall not do, or attempt to do, any of the following: (1) sell, rent, lease or otherwise transfer access to the Kynex Tool; (2) modify, copy, distribute, transmit, reproduce, publish, license, transfer, sell, mirror, frame, or otherwise use any Kynex Proprietary Materials; (3) use any robot, spider, scripts, or other automated means or manual process to monitor or copy any data or database in the Kynex Tool; (4) extract or store data or databases in the Kynex Tool on a systematic basis to your own databases or devices; (5) reverse engineer, decompile, or disassemble any portion of the Kynex Tool; (5) alter or modify any portion of the Kynex Tool (other than user customizable functionality); (6) deactivate or bypass the security protocols used to limit access to the Kynex Tool; or use the Kynex Tool for any purpose that is unlawful or prohibited by this Agreement.
Acknowledgement of Intellectual Property Rights. You acknowledge that Kynex has expended substantial sums and devoted substantial resources in creating the Kynex Tool and has substantial intellectual property rights, including valuable trade secrets and copyrights, in the Kynex Proprietary Materials. You agree to secure and protect the Kynex Proprietary Materials in order to maintain the intellectual property rights of Kynex therein, including, but not limited to, providing appropriate instructions to and requiring written confidentiality agreements with your named end users and other personnel exposed in any way to the Kynex Proprietary Materials. You acknowledge that the unauthorized use or disclosure of the Kynex Proprietary Materials would cause irreparable harm and significant injury that may be difficult to compensate. Accordingly, you agree that Kynex will have the right to seek and obtain temporary and permanent injunctive relief in addition to any other rights and remedies it may have.
Your Content. You represent and warrant that you will not send, upload, transmit or otherwise distribute through the Kynex Tool any data, material, or information (“Content”) that: (1) infringes or misappropriates any patent, copyright, trademark, trade secret or other proprietary right; (2) violates any law, statute, ordinance, or regulation; (3) you do not have permission to provide to Kynex, or that would require Kynex to obtain a license or incur any amounts to receive, store, process, or otherwise handle; (4) is threatening, defamatory, libelous, harassing or profane; (5) contains a virus, Trojan horse, worm, time bomb or other component that may adversely affect any hardware or software, or that intercepts or expropriates any data or information; or (6) includes bulk transmissions, advertisements or solicitations.
Protection of Your Content. Kynex uses commercially accepted virus detection tools to scan for viruses in the Kynex Tool. Except for data, materials, or information that (1) is generally available to or previously known to the public, (2) was known to Kynex prior to receipt from you, or (3) is independently developed by Kynex outside the scope of this Agreement without use of your Content, Kynex agrees to treat your Content confidentially using reasonable care to protect your Content from unauthorized disclosure or use. Kynex permits only its employees, agents, advisors, representatives, or independent contractors to access your Content as required to carry out the purposes of this Agreement. Kynex may disclose your Content if required to do so by law, including a court or administrative order. In such case, Kynex will, if permitted, promptly inform you of such requirement (and you may seek a protective or similar order, if you chose). The Kynex Tool is not intended to be the primary system of record for any Content, and you are advised to establish separate storage and backup for your Content (not including data and databases made available by the Kynex Tool).
Usage Data. Kynex may create, use and disclose aggregated or statistical transaction data and metadata that is generated through or derived from your use of the Kynex Tool and Content (“Usage Data”) for its business purposes, including, but not limited to, analysis of the use of the Kynex Tool, making improvements to the Kynex Tool, and for identifying statistical patterns, insights and learnings from uses of the Kynex Tool. Kynex will be the sole owner of Usage Data. Kynex will anonymize any reference to you in the Usage Data, and the Usage Data will be otherwise aggregated, de-identified and/or compiled on a generic basis.
Feedback. If you provide any suggestion or idea for improving or otherwise modifying the Kynex Tool, Kynex has not agreed to and does not agree to treat as confidential any such feedback. Nothing in this Agreement or in the parties’ dealings related to this Agreement will restrict Kynex’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit such feedback, without compensating or crediting you.
Indemnity. You hereby agree to defend and indemnify Kynex, its affiliates and its licensors, and all of their officers, directors, shareholders, legal representatives, employees, successors, assigns, and agents and hold them harmless from and against any and all claims, proceedings, damages, injuries, liabilities, losses, costs, and expenses (including reasonable attorneys’ fees and litigation expenses), relating to or arising from (1) your Content, (2) your use of the Kynex Tool or (3) your breach of the terms of this Agreement, except to the extent the claim, proceeding, damages, injury, liabilities, losses, costs, or expenses are caused by Kynex’s gross negligence, fraud, or willful misconduct. You shall not settle or otherwise dispose of any third party claim that is subject to indemnification by you without the prior written consent of Kynex, which will not be unreasonably withheld.
Infringement. Kynex will, at its own expense, defend or, at its option, settle any claim brought against you to the extent that it is based on an allegation that your use of the Kynex Tool within the scope of this Agreement infringes any U.S. patent or copyright, provided that Kynex is promptly notified in writing of such claim. The foregoing obligation of Kynex does not apply to any use of the Kynex Tool (1) in a manner not expressly authorized by this Agreement, or (2) in combination with other products (hardware or software), processes, data, or materials where the alleged infringement would not exist but for such combination. Kynex will have the right to control the defense of all such claims, lawsuits, and other proceedings. You shall not in any event settle any such claim, lawsuit, or proceeding without Kynex’s prior written approval.
Warranty. Kynex provides the Kynex Tool on an “AS-IS” basis. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, KYNEX AND ITS LICENSORS DISCLAIM ALL WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT, WITH REGARD TO THE KYNEX TOOL AND ITS CHARACTERISTICS, QUALITY, PERFORMANCE OR VALUE. KYNEX AND ITS LICENSORS DO NOT WARRANT THAT YOUR ACCESS TO THE KYNEX TOOL WILL BE UNINTERRUPTED OR ERROR FREE, AND YOU ARE SOLELY RESPONSIBLE FOR THE SELECTION OF THE KYNEX TOOL TO ACCOMPLISH YOUR INTENDED PURPOSE AND FOR THE RESULTS ACTUALLY OBTAINED. KYNEX IS NOT A REGISTERED INVESTMENT ADVISOR, AND THE KYNEX TOOL DOES NOT RECOMMEND SPECIFIC COMPANIES, SECURITIES, OR ASSETS FOR INVESTMENT, SALE, OR OTHER FINANCIAL CONSIDERATION.
Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL KYNEX OR ITS LICENSORS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER OR FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, BUSINESS OR INVESTMENT VALUE, LOSS OF CONTENT, DATA, OR INFORMATION, OR ANY OTHER PECUNIARY LOSS ARISING OUT OF THE USE OF OR INABILITY TO USE THE KYNEX TOOL, EVEN IF KYNEX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, KYNEX’S TOTAL CUMULATIVE LIABILITY HEREUNDER, FOR ANY CAUSE OF ACTION, REGARDLESS OF FORM, WILL NOT EXCEED, IN THE AGGREGATE, THE FEES PAID BY YOU FOR USE OF THE KYNEX TOOL DURING THE APPLICABLE SUBSCRIPTION PERIOD.
Force Majeure. Any delays in or failure in the performance of any of Kynex’s obligation hereunder will be excused if such delay or failure is caused by occurrences beyond Kynex’s reasonable control, including but not limited to acts of God, strikes or other labor disturbances, war (whether declared or not), sabotage, interruption or failure of telecommunication or digital transmission links, Internet slow-downs or failures, and any other cause that cannot reasonably be foreseen or controlled. If Kynex is unable to provide you with any access to the Kynex Tool for a period exceeding one (1) calendar month, whether due to an event of force majeure or otherwise (but not due to a failure of your internet connectivity or otherwise due to your acts or omissions), you may terminate this Agreement by notice to Kynex in writing, and receive a pro-rated refund of Subscription Fees actually paid to Kynex for the period of time beginning when Kynex’s inability to provide you with access to the Kynex Tool commenced until the end of the then-current Subscription Period.
Internet Frailties. You acknowledge that the Internet consists of a series of networks that are subject to failures and errors in operation and transmission. The Internet is an inherently insecure, publicly accessible network subject to access at multiple locations. Any software used or designed to operate on or with the Internet is subject to failures and errors caused by the operation or failure of, or defects in, the Internet. Any data transmitted over the Internet, even when transmitted with security protections, is subject to possible access, modification, diversion, corruption and disclosure by unintended parties. In no event will Kynex be liable for or as a result of any such failures, errors, access, modifications, diversions or disclosures.
Miscellaneous. This Agreement is governed by the laws of the State of New York without regard to its conflicts of law principles. Kynex and you agree that jurisdiction and venue in any action brought pursuant to this Agreement will properly exclusively lie in any federal or state court located in the State of New York and each of Kynex and you expressly submit to such exclusive jurisdiction. If any provision of this Agreement is held to be unenforceable, such decision will not affect the validity or enforceability of the remaining provisions, and any such unenforceable provisions will be reformed to the extent necessary to make it enforceable and valid. You may not assign this Agreement or any of your rights or obligations hereunder without first obtaining Kynex’s prior written consent.
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