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  Terms Of Use

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

IMPORTANT.  PLEASE READ CAREFULLY: This License Agreement (“Agreement”) constitutes a legal agreement between you, a business entity or individual end-user, and Kynex, Inc. (“Kynex”) for access via assigned ID(s) and password(s) to the Kynex Tool as such term is defined below.  By clicking the “I Agree” button below, or by otherwise using or accessing the Kynex Tool, you agree to be bound by the provisions of this Agreement.  If you do not agree to the provisions of this Agreement, you may not access or use the Kynex Tool.

 Nature of Kynex Tool; Registration. Kynex has developed a proprietary suite of software tools used to analyze and model financial scenarios related to convertible securities, or has acquired the right from third parties to use such third parties’ proprietary software products to incorporate in such tools (the “Kynex Tool”).  Upon payment of the applicable Subscription Fees, 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 end-users.  Each user ID and password may only be used by the named individual for whom you have paid the applicable Subscription Fees (defined below).  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.  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.

 Fees and Payments.  You may purchase access to the Kynex Tool by contacting Kynex at 201.796.4900 or info@kynex.com.  Kynex will invoice you for all license fees and other charges (“Subscription Fees”), and all Subscription Fees 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 shall 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 forty-five (45) 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 pursuant hereto does not relieve your obligation to pay any fees owing hereunder.    

Subscription Period.  Your ID(s) and password(s) will be valid upon your acceptance of this Agreement, which will commence your subscription. Your subscription will 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 shall immediately terminate and your ID(s) and password(s) shall 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: (i) cease all use of the Kynex Tool; and (ii) 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.  You may terminate this Agreement as expressly set forth in the paragraph of this Agreement entitled “Force Majeure and Internet Frailties,” below.  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 License.  In consideration of your payment of the applicable Subscription Fees, Kynex grants you the limited, nonexclusive, non-transferable, revocable right to access and use the Kynex Tool exclusively via assigned user ID(s) and password(s), exclusively 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 solely in accordance with this Agreement.  Except as expressly set forth herein, you may not sell, rent, lease or otherwise transfer access to the Kynex Tool nor may you modify, copy, distribute, transmit, reproduce, publish, license, transfer, sell, mirror, frame, or otherwise use any Kynex Proprietary Materials (defined below).  You may not reverse engineer, decompile, or disassemble any portion of the Kynex Tool.  You may not alter or modify any portion of the Kynex Tool (other than user customizable functionality).  You may not reproduce, deactivate, or bypass the security devices supplied with the Kynex Tool.  You represent and warrant to Kynex that you will not use the Kynex Tool for any purpose that is unlawful or prohibited by this Agreement.

 Intellectual Property Rights.  Title in and ownership of all software, documentation, data, techniques, algorithms, ideas, specifications, information, data-bases, 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, shall remain at all times vested in Kynex and its licensors.  Except for the limited license granted above, no license, express or implied, is granted to you under 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.

 Representations and Warranties.  You represent and warrant that you will not send, upload, transmit or otherwise distribute through the Kynex Tool any material or information that: (i) infringes or misappropriates any patent, copyright, trademark, trade secret or other proprietary right, (ii) violates any law, statute, ordinance, or regulation, (iii) is threatening, defamatory, libelous, harassing or profane, (iv) 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 (v) includes bulk emails, advertisements or solicitations.  Kynex represents and warrants that it uses commercially accepted virus detection tools to scan for viruses in the Kynex Tool.

 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 (i) your use of the Kynex Tool or (ii) your breach of license terms of this Agreement, except to the extent the claim, proceeding, damages, injury, liabilities, losses, costs, or expenses are caused by Kynex’ 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, not be unreasonably withheld.

 Infringement.  Kynex shall, at its own expense, defend or, at its option, settle any claim brought against you to the extent that it is based on a claim 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 (i) in a manner not expressly authorized by this Agreement, or (ii) in combination with other products (hardware or software), processes or materials where the alleged infringement would not exist but for such combination.  Kynex shall have the right to control the defense of all such claims, lawsuits, and other proceedings.  In no event shall you settle any such claim, lawsuit, or proceeding without Kynex’s prior written approval.

Limited 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 OTHER 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.  TO THE EXTENT ALLOWED BY APPLICABLE LAW, IMPLIED WARRANTIES ON THE KYNEX TOOL, IF ANY, ARE LIMITED TO NINETY (90) DAYS.  SOME STATES AND JURISDICTIONS DO NOT ALLOW EXCLUSIONS OF, OR LIMITATIONS ON THE DURATION OF, AN IMPLIED WARRANTY, SO THE ABOVE EXCLUSION AND LIMITATION MAY NOT APPLY TO YOU.  THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS.  YOU MAY HAVE OTHERS, WHICH VARY AMONG STATES/JURISDICTIONS.

 Limitation Of Liability.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL KYNEX OR ITS LICENSORS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS 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, SHALL NOT EXCEED, IN THE AGGREGATE, THE FEES PAID BY YOU FOR USE OF THE KYNEX TOOL DURING THE APPLICABLE SUBSCRIPTION PERIOD.  BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY, THE ABOVE EXCLUSION AND LIMITATION MAY NOT APPLY TO YOU.

 Force Majeure and Internet Frailties.  Any delays in or failure in the performance of any obligation hereunder shall be excused if and to the extent caused by occurrences beyond 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 or causes, whether similar or dissimilar to those herein specified, that cannot reasonably be foreseen or controlled.  You acknowledge that the Internet consists of a series of networks that are subject to failures and errors in operation and transmission.  If Kynex is unable to provide you with any access to the Kynex Tool for a period exceeding three (3) calendar months, whether due to an event of force majeure or otherwise, 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, provided that Kynex’s inability to provide you with access to the Kynex Tool is not due to a failure of your internet connectivity or otherwise due to your acts or omissions.  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 shall Kynex be liable for or as a result of any such failures, errors, access, modifications, diversions or disclosures.

Miscellaneous.  If any provision of this Agreement is held to be unenforceable or illegal, such decision shall not affect the validity or enforceability of the remaining provisions, and any such unenforceable or illegal provisions shall be reformed only to the extent necessary to make it enforceable and valid.  This Agreement is governed by the laws of the State of New York without regard to its conflicts of law principles.  You agree that jurisdiction and venue in any action brought pursuant to this Agreement shall properly (but not exclusively) lie in any federal or state court located in the State of New York and you expressly submit to such non-exclusive jurisdiction  You may not assign this Agreement or any of your rights or obligations hereunder without first obtaining Kynex’s prior written consent.

 [  ]  Yes, I agree to the Agreement                       

[  ]  No, I do not agree to the Agreement

 

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