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This End-User License Agreement (the “Agreement”) is a binding legal contract between you and the entity or company that you represent (“You” or "Customer") and Kyligence USA, Inc. (“Kyligence”), and applies to your use of the Kyligence Software. Please read these terms carefully.
By taking any step (including, but not limited to, by clicking on the "Accept" button or downloading the Software) to set-up, install, access, or use the Software, you are unconditionally consenting to be bound by and are becoming a party to this Agreement. You represent that you have full legal authority to accept enter into this Agreement on behalf of Customer. If you do not agree with any of the terms or conditions of this Agreement, you may not use any portion of the Software. If these terms of this Agreement are considered an offer, acceptance is expressly limited to these terms.
The “Effective Date” of this Agreement is the earliest to occur of the date you accept this Agreement, or the date you first access or use any Software.
Capitalized terms used but not otherwise defined in this Agreement have the meanings set forth in Exhibit A.
Unless otherwise expressly permitted by Kyligence, Customer shall not: (a) copy any Kyligence Software; (b) modify, adapt, or create derivative works of any Kyligence Software; (c) rent, lease, loan, resell, transfer, sublicense, distribute, disclose or otherwise provide any Kyligence Software to any third party; (d) decompile, disassemble or reverse-engineer any Kyligence Software, or determine or attempt to determine any source code, algorithms, methods or techniques embodied in or underlying structure, ideas or algorithms of any Kyligence Software, except that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law; (e) access or use any Disabled Materials; (f) provide to any third party the results of any benchmark tests or other evaluation of any Kyligence Software without Kyligence’s prior written consent; (g) attempt to disable or circumvent any license key or other technological mechanisms or measures intended to prevent, limit or control use or copying of, or access to, any Kyligence Software (including in order to gain access to any Disabled Materials); (h) remove or obscure any copyright, trademark, patent, or other proprietary notices, legends or symbols from any Kyligence Software; (i) exceed the Licensed Capacity or violate other license limitations identified in this Agreement; (j) separately use any of the applicable features and functionalities of the Kyligence Software with external applications or code not furnished by Kyligence; (k) access or use any Kyligence Software for commercial time-sharing or service-bureau use or for any purpose other than its own internal Business Purpose as expressly authorized in this Agreement; (l) use the Kyligence Software other than in compliance with all applicable laws and regulations, including but not limited to laws and regulations concerning privacy, data security, and data protection, intellectual property, consumer and child protection, obscenity or defamation; or (l) encourage, assist, or permit any third party to do any of the foregoing. Customer acknowledges that the Software may display warnings if the Subscription Term is about to expire or the Licensed Capacity is about to be reached or exceeded. In the event that the Licensed Capacity is reached, the Software will continue function at the level of Licensed Capacity purchased by Customer, but Customer can no longer use additional capacity.
Subject to Customer’s timely payment of all the applicable fees, Kyligence will provide its standard support and maintenance services in accordance with Kyligence’s support policy available at https://kyligence.io/service-level-agreement/ (the “Support Services”). The parties may enter into by mutual execution separate statements of work (the “SOW”) for the provision by Kyligence of certain professional services (the “Professional Services”) to Customer, which may include customization, configuration, deployment, implementation, guided services, consultation, education or training services. The fees and terms for such Professional Services will be as provided in the applicable SOW.
Customer shall establish and maintain complete and accurate records related to the location, access and use of the Kyligence Software by Customer, its employees or its agents, and any such other information as reasonably necessary for Kyligence to verify compliance with the terms of this Agreement. With Customers prior written approval, Kyligence or its representative may request such records, which shall not be unreasonably withheld, to confirm Customer’s compliance with the terms of this Agreement. If an audit reveals that Customer (and/or any of its service provider) has exceeded the Licensed Capacity or the scope of Customer’s license grant during the period audited, then Kyligence will invoice Customer, and Customer will promptly pay Kyligence any underpaid Subscription Fees based on Kyligence’s price list in effect at the time the audit is completed. If the excess usage exceeds ten percent (10%) of the Licensed Capacity, then Customer will also pay Kyligence’s reasonable costs of conducting the audit. Customer will ensure that its service providers provide Kyligence with the access described in this Section 7. This Section 7 will survive expiration or termination of this Agreement for a period of three (3) years.
EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8 ABOVE, THE KYLIGENCE SOFTWARE, OPEN SOURCE SOFTWARE, THIRD PARTY CONTENT, SUPPORT SERVICES, PROFESSIONAL SERVICES, AND ANY OTHER SUBJECT MATTER PROVIDED BY KYLIGENCE HEREUNDER ARE PROVIDED “AS IS” WITH NO WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED. TO THE FULL EXTENT PERMITTED BY LAW, KYLIGENCE AND ITS SUPPLIERS AND LICENSORS DISCLAIM ALL WARRANTIES OTHER THAN AS EXPRESSLY SET FORTH IN SECTION 8, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR TRADE USAGE. WITHOUT LIMITATION OF THE GENERALITY OF THE FOREGOING, KYLIGENCE DOES NOT WARRANT THAT USE OF THE SOFTWARE WILL BE UNINTERRUPTED, ERROR FREE OR SECURE, OR THAT ALL DEFECTS WILL BE CORRECTED.
TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OR LIMITATION OF LIABILITY: (A) KYLIGENCE AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS, AND LICENSORS (THE “KYLIGENCE ENTITIES”) WILL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF; AND (B) KYLIGENCE ENTITIES’ TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF WILL NOT EXCEED THE TOTAL AMOUNT OF SUBSCRIPTION FEES PAID BY CUSTOMER TO KYLIGENCE FOR THE KYLIGENCE SOFTWARE IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY, IN EACH OF THE FOREGOING CASES (A) AND (B), REGARDLESS OF WHETHER SUCH LIABILITY ARISES FROM CONTRACT, INDEMNIFICATION, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND REGARDLESS OF WHETHER KYLIGENCE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. IN ADDITION, CUSTOMER, AND NOT KYLIGENCE, IS SOLELY RESPONSIBLE FOR THE LEGALITY, RELIABILITY, ACCURACY, QUALITY, INTEGRITY, AND SECURITY OF CUSTOMER’S DATA (INCLUDING, WITHOUT LIMITATION, USER INFORMATION) AND FOR MAINTAINING A BACKUP OF ALL SUCH DATA, AND FOR ENSURING THE SECURITY AND INTEGRITY OF CUSTOMER’S (AND ITS SERVICE PROVIDER’S) DATA, COMPUTERS, NETWORKS AND SYSTEMS (INCLUDING WITH RESPECT TO PROTECTING AGAINST VIRUSES AND MALWARE). Customer acknowledges and accepts that Kyligence shall not be responsible for any loss, destruction, alteration or disclosure of Customer’s Data.
Customer shall comply fully with all relevant export laws and regulations of the United States and any other country (“Export Laws”) where Customer uses any of the Kyligence Software. Customer certifies that Customer is not on any of the relevant U.S. government lists of prohibited persons, including the Treasury Department’s List of Specially Designated Nationals and the Commerce Department’s List of Denied Persons or Entity List. Customer further certifies that Customer will not export, re-export, ship, transfer or otherwise use the Kyligence Software in any country subject to an embargo or other sanction by the United States, and that Customer will not use the Kyligence Software for any purpose prohibited by the Export Laws, including, but not limited to, nuclear, chemical, missile or biological weapons related end uses.
Customer agrees that, with Customer’s written permission, Kyligence may publish a brief description of Customer’s deployment of the Software and identify Customer as a Kyligence customer on any of Kyligence’s websites, client lists, press releases, and/or other marketing materials.
“Affiliate” means a corporation, partnership or other entity controlling, controlled by or under common control with such party, but only so long as such control continues to exist. For purposes of this definition, “control” means ownership, directly or indirectly, of greater than fifty percent (50%) of the voting rights in such entity (or, in the case of a noncorporate entity, equivalent rights).
“Business Purpose” means Customer’s use of the Kyligence Software in support of Customers products for its own internal business purposes on systems, networks and devices used by Customer.
“Delivery” means the date of Kyligence’s initial delivery of the license key for the applicable Software or otherwise making the applicable Software available for download by Customer.
“Disabled Materials” means certain materials (including programs, modules or components, functionality, features, documentation, content or other materials) that may be contained in or provided with the Software as part of the delivery mechanism used by Kyligence, but that are disabled or hidden in Customer’s setting, because Customer either: (a) does not have the relevant license or license key, or (b) has not paid the applicable Subscription Fees, for those materials.
“Feedback” means all suggestions for improvement or enhancement, recommendations, comments, opinions, code, input, ideas, reports, information, know-how or other feedback provided by Customer (whether in oral, electronic or written form) to Kyligence in connection with Kyligence Software. Feedback does not include any User Information, unless specifically submitted or communicated by Customer to Kyligence as part of the Feedback.
“Free Software” means Kyligence Software that is provided to Customer by Kyligence without charge.
“Government” means an agency, department, or instrumentality of the United States government.
“Intellectual Property Rights” means all rights of the following types, under the laws of any jurisdiction worldwide: (a) rights associated with works of authorship, including exclusive exploitation rights, copyrights, and moral rights; (b) trade secret rights; (c) patent and industrial property rights; (d) other proprietary rights of every kind and nature; and (e) rights in or relating to registrations, renewals, extensions, combinations, divisions, and reissues of, and applications for, any of the above.
“Kyligence Software” or “Software” means Kyligence’s software product in the object code format that is made available to Customer by Kyligence, with any accompanying manuals and other documentation.
“Licensed Capacity” means the maximum usage of the Software that is permitted under the type of license as specified by Kyligence during the purchase process.
“Subscription Term” means the subscription term as specified by Kyligence during the purchase process, or if the term is not specified, a 12-month term from the effective date of the applicable purchase date.
"User Information" means any information (i) uploaded into the Kyligence Software by Customer, or (ii) generated from Customer’s use of the Software that is stored in Customer’s servers and information systems, in each case, related to the internal business practices, customers or other non-public information of Customer or its Affiliates.
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San Jose, CA 95113
+1 (669) 256-3378
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