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.