End-User Licensing Agreement
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KIRIX Strata™ LICENSE AGREEMENT
PLEASE READ THIS KIRIX Strata™ LICENSE AGREEMENT (“Agreement”) CAREFULLY BEFORE SELECTING THE “I accept the terms of the license agreement” OPTION BELOW, INSTALLING THE KIRIX Strata™ SOFTWARE OR USING THE KIRIX Strata™ SOFTWARE AND ITS ACCOMPANYING MATERIALS. BY SELECTING THE “I accept the terms of the license agreement” OPTION BELOW, INSTALLING THE SOFTWARE OR USING THE SOFTWARE YOU (“Licensee”) ARE CONFIRMING YOUR AGREEMENT TO BE BOUND BY THE TERMS OF THIS AGREEMENT INCLUDING THE WARRANTY DISCLAIMERS, LIMITATIONS OF LIABILITY AND TERMINATION PROVISIONS BELOW. IF LICENSEE IS A CORPORATION, PARTNERSHIP, OR OTHER NON-INDIVIDUAL ENTITY, THE PERSON ACCEPTING THIS AGREEMENT ON BEHALF OF THAT ENTITY REPRESENTS AND WARRANTS THAT THEY HAVE ALL NECESSARY AUTHORITY TO BIND THAT ENTITY. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, SELECT THE “I do not accept the terms of the license agreement” OPTION AND DO NOT INSTALL THE KIRIX Strata™ SOFTWARE. ADDITIONAL TERMS AND CONDITIONS APPLY FOR ANY TRIAL PERIOD OR EVALUATION LICENSE; SEE SECTION 21 BELOW. THE EVALUATION VERSION OF KIRIX Strata™ SOFTWARE MAY CONTAIN LIMITED FUNCTIONALITY.
IMPORTANT: THE KIRIX Strata™ SOFTWARE IS A PROPRIETARY PRODUCT AND IS PROTECTED BY COPYRIGHT AND OTHER INTELLECTUAL PROPERTY LAWS. IT IS LICENSED (NOT SOLD) FOR USE SUBJECT TO THE CONDITION THAT LICENSEE AGREES TO THE TERMS OF THIS AGREEMENT.
Kirix Research, LLC (“Kirix”) has developed a proprietary data analysis software program called Kirix Strata™ (“Strata™”). Licensee wishes to use the Product (as defined in Section 1 below) on a single computer at any given time solely for Licensee’s own internal business or personal purposes.
Licensee and Kirix agree as follows:
1. License Grant. Subject to payment of all applicable license fees and all terms and conditions of this Agreement, Kirix hereby grants Licensee a limited, non-exclusive, non-transferable, revocable license, solely for the applicable term (as determined by Section 3 below) and solely for Licensee’s internal business purposes or Licensee’s personal purposes, to:
The Software is in “use” on a computer when it is copied or loaded into the permanent (i.e., hard disk or other storage device) or temporary memory (i.e., RAM) of a single computer. “Product” in this Agreement means, collectively, the Software and all media, documentation and sample data related to the Software.
The Software contains an unmodified binary version of the open-source Xulrunner engine as provided by the Mozilla Foundation. This Agreement does not create or make any obligations of The Mozilla Foundation, the initial developer or any contributors to the Xulrunner engine. All terms of this Agreement that differ from the Mozilla Public License are offered by Kirix alone with respect to such executable version. The source code to the Xulrunner engine is available at https://developer.mozilla.org/en-US/docs/XULRunner subject to the terms of the Mozilla Public License.
2. Restrictions. The Product is comprised of proprietary software and materials and is protected by the laws of the United States of America, state laws and international treaties, including but not limited to copyright, trade secret and patent laws. Licensee agrees that it will not:
By way of clarification, Section 2(c) above prohibits the marketing to, and use of, the Product by third parties, but does not prohibit Licensee from using the Product for analyzing third-party data and reporting the results of that analysis in the ordinary course of Licensee’s business. Further, these restrictions do not prohibit use and configuration of existing capabilities within the Software. While this Section limits Licensee from accessing, modifying or creating derivatives from Kirix's source code, Kirix encourages users to develop custom applications and extensions or create processes that run on a regular basis using the scripting functionality that is resident within the Software. Licensee may distribute (even sell or license) Licensee's original extensions as Licensee sees fit (although Licensee may still not rent, sublicense or distribute the Software as a part of any distribution), and Licensee must still comply with all applicable laws and third party licenses or other agreements that may be affected by Licensee's use of the scripting functionality.
3. Term/Termination. This Agreement and Licensee’s license to use the Product (as set forth in Section 1 above) is effective:
This Agreement will automatically terminate upon the earlier of: (i) any breach of the terms and conditions of this Agreement by Licensee; or (ii) the expiration, if any, of Licensee’s Activation Code, where no renewal Activation Code is purchased.
4. Ownership. The Product is owned by (or licensed by) Kirix and is protected by United States copyright and patent laws, state laws and international treaty provisions and all other applicable national laws. Licensee is not granted any ownership right, title, or interest, nor any security interest or other interest, in any intellectual property rights relating to the Product nor in any part of the Product. Kirix is the owner (or licensor) of the Product and Licensee is granted only the limited license rights set forth in Section 2 above with respect to the Product. The structure, organization, algorithms, design and code of the Software are the valuable trade secrets and confidential information of Kirix. Kirix and its licensors own and have the exclusive right to make, license and sell any changes to the Product. Licensee will keep the Product and title to the Product free from all liens, attachments, encumbrances or other judicial processes. Licensee will immediately notify Kirix of the nature and substance of any claim that may be adverse to Kirix’s interest in the Product.
5. U.S. Government Restricted Rights. The Product is a “commercial” item provided with restricted rights. Use, duplication, or disclosure by the United States Government is subject to restrictions as set forth in this Agreement and at DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARs 252.227-7013 (c)(1)(ii) (Oct. 1988), FAR 12.212(a) (1995), FAR 52.227-19 (June 1987), or FAR 52.227-14 (ALT III), as applicable. Manufacturer is Kirix Research, LLC, P.O. Box 1111, Elmhurst, Illinois 60126.
6. License Fees & Taxes. Licensee will pay to Kirix the applicable license fee for the Product in effect at the time Licensee acquires a Periodic or Perpetual Activation Code for licensed use of the Product. The Evaluation and trial period versions of the Product are licensed without a license fee. Licensee acknowledges and agrees that Kirix may increase Periodic license fees with respect to any renewals or future purchases of Periodic licenses at any time. Licensee must pay the applicable license fee to Kirix prior to the commencement of any Periodic renewal term and the renewal Activation Code must be activated to ensure no loss of function of the Product. In addition to any Periodic or Perpetual license fee, Licensee will pay all sales, transfer, use, and other taxes and all duties and tariffs, whether international, national, state, or local, however designated, which are levied or imposed by reason of a transaction under this Agreement, excluding taxes imposed on Kirix’s income. Licensee will reimburse Kirix for the amount of any taxes or duties paid or accrued directly by Kirix as the result of this Agreement. If a certificate of exemption or similar document is to be used in order to exempt Licensee from that liability, Licensee will furnish a copy of the certificate to Kirix. In the event that Licensee is prohibited by law from making payments to Kirix free of deductions or withholdings, Licensee will pay the additional amounts to Kirix as may be necessary to ensure that the actual amount received by Kirix after deduction or withholding and after payment of any additional taxes or charges due as a consequence of the payment of the additional amounts, equals the amount that would have been received by Kirix if the deductions or withholdings were not required.
7. Licensee Obligations. Licensee will:
8. Limited Warranty and Disclaimers. Kirix warrants that the Product (excluding the Evaluation version and any trial-period use of the Product, which are subject to Section 21 below) will function substantially in accordance with its electronic documentation (included in the Product installation) for a period of ninety (90) days after receipt of the Product by Licensee. As Kirix’s sole liability and Licensee’s sole remedy, to the exclusion of all other remedies in contract, tort, or otherwise, for any breach of the warranty in the preceding sentence, Kirix will repair or replace any defective or malfunctioning Product at no charge during the warranty period or if Kirix, in its sole discretion, deems repair or replacement of the Product to be commercially unreasonable, Kirix may terminate this agreement and refund to Licensee the applicable Periodic or Perpetual license fee paid by Licensee for the malfunctioning Product. For warranty service, Licensee may contact Kirix on the internet at www.kirix.com. Except as explicitly set forth in this Section 8, The Product is distributed and licensed “as-is”, with no warranties whatsoever, express or implied, including, without limitation, warranties of merchantability, quality, fitness for any particular purpose (or any general purpose) or non-infringement of patents, copyrights or other proprietary rights of others. Any supplements, upgrades or updates to the Product, including without limitation, any fixes provided to Licensee after the expiration of the warranty period set forth in this Section 8, are not covered by any warranty or condition, express, implied or statutory. Some states and jurisdictions do not allow limitations on implied warranties, so the above limitations may not apply to Licensee. When the implied warranties are not allowed to be excluded in their entirety, Licensee agrees the implied warranties will be limited to the duration of the limited warranty above. This limited warranty grants Licensee specific legal rights and Licensee may also have other rights that vary from state to state.
Due to the complex nature of computer software, Kirix does not warrant that the Product is completely error free, will operate without interruption, or is compatible with all equipment and software configurations. Licensee expressly assumes all risk for use of the Product.
The limited warranty offered in this Agreement is offered solely by Kirix Research, LLC, and Kirix alone. No warranties are offered by, or given, by any of Kirix’s licensors, including, but not limited to The Mozilla Foundation.
Except for services that Kirix may provide under the warranty provisions set forth in this Section 8 and the maintenance and support provided under Section 20 below, Kirix will provide no consultation, installation assistance, training, integration, software customization, software maintenance, user support, or other service related to the Product other than under a separate written services agreement between Kirix and Licensee.
Licensee has independently verified, without relying upon any skill or judgment of Kirix, that the Product is appropriate for the purposes for which Licensee intends to use it. All decisions, judgments and advice made by Licensee with the assistance or use of the Product are exclusively Licensee’s responsibility. Licensee will indemnify, hold harmless, and defend Kirix from and against any claims, costs, expenses or lawsuits, including attorneys' fees, which arise from or result from or relate to Licensee’s use of the Product.
Except for the Evaluation version of the Product, which does not require an Activation Code, Licensee may only access the Product using an Activation Code. Licensee acknowledges and agrees that any attempt to circumvent the Activation Code is a material breach of this Agreement that results in immediate termination of this Agreement. Licensee does not and will not object to Kirix’s use of debilitating or limiting measures in the Product, including, without limitation, the Activation Code, to help Kirix assure that the Software is used only within the scope of, and in compliance with, this Agreement. Licensee acknowledges that the Software will not operate without a valid Activation Code. For licenses of a Periodic version of the Product, Licensee acknowledges and agrees that a failure to renew this license by obtaining and enabling a new Activation Code will result in the loss of function of the Software and may result in the loss of data. For licenses of the Evaluation version of the Product, Licensee Acknowledges that the Evaluation version will cease all operation after a period of 30 days from installation and that cessation of operation may result in the loss of data. Licensee acknowledges and agrees that Kirix will have no liability arising from the failure of Software (including the Evaluation version and any trial-period use of the Product) to function due to the absence of a valid Activation Code or any electronic limiting measures incorporated in the Software. Licensee acknowledges and agrees that Kirix will have no liability arising from the use by Licensee of any Activation Code other than in accordance with Kirix’s instructions. Some states restrict the limitation or exclusion of liability, so the above limitation may not apply to Licensee in those states.
9. Limitation Of Liability. To the maximum extent permitted by law, Kirix will not have any liability or responsibility to Licensee for damages of any kind, including special, incidental, indirect or consequential damages (including, without limitation, damages for loss of data), arising out of or resulting from the Product, any component, documentation, services or materials made available to Licensee under this Agreement or the use or modification of any of them, even if Kirix has been advised of the possibility of the damages. In any case, Kirix’s entire liability under any provision of this Agreement will be limited to the amount actually paid by Licensee to Kirix for the Product or ten United States dollars ($10.00), whichever is greater. Some states do not allow the limitation or exclusion of liability for incidental or consequential damages, or have legislation that restricts the limitation or exclusion of liability, so the above limitation may not apply to Licensee in those states. Without limiting the foregoing, Kirix and Licensee agree that if any remedy under this Agreement is determined to have failed of its essential purpose, all limitations and exclusions of liability set forth in this agreement will remain in effect. Licensee agrees that Kirix’s licensors, including, without limitation, The Mozilla Foundation, will have no liability whatsoever to Licensee.
10. Indemnification. Licensee agrees to defend, indemnify and hold harmless Kirix, its officers, directors and employees from and against any claims, suits, losses, damages, fines and expenses (including attorneys’ fees and costs) arising out of or in any way related to Licensee’s use of the Product: (i) in violation of any law or regulation; (ii) that attempts, commits or results in any actual or alleged infringement, misappropriation or violation of any third party’s rights; and/or (iii) in breach of any agreement between Licensee and any third party.
11. Survival & Obligations Upon Termination. The terms and conditions of Sections 9 through 19 will survive the termination or expiration of this Agreement. Upon termination or expiration of this Agreement for any reason Licensee agrees to cease all use, and make no further use, of the Product and destroy all materials related to the Product. Without limitation, Licensee will, upon termination or expiration of this Agreement, delete all copies of the Software, whether on any hard drive, in any temporary memory or otherwise and, if requested by Kirix, certify destruction of those copies.
12. Injunctive Relief. Kirix has and may cumulatively exercise all rights it might have at law or in equity for the protection of the Product, including, without limitation, injunctive relief enjoining the breach or threatened breach of this Agreement. In the event Licensee breaches or threatens a breach of this Agreement, Licensee agrees that Kirix will be entitled to injunction and other temporary and permanent equitable relief without requirement of posting bond and without the necessity of showing actual money damages.
13. Assignment. The license granted to Licensee is personal and Licensee may not assign this Agreement in part or in whole to any third party without the prior written consent of Kirix. Any attempted assignment in violation of this Section 13 will be null and void. The Product is not for resale and Licensee may not resell, license, or otherwise transfer for value, the Product without the prior written consent of Kirix.
14. Governing Law. So far as may be permitted by the laws of their respective jurisdictions, Kirix and Licensee expressly agree that this Agreement is governed by and construed in accordance with the laws of the State of Illinois, United States of America, without regard to its conflict of law principles. Except where Kirix seeks equitable relief, the parties agree that the state and federal courts located in DuPage County and Cook County, Illinois will be the sole and exclusive venue and jurisdiction for any litigation arising from this Agreement. PURSUANT TO ARTICLE 6 OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS (“UN CONVENTION”), LICENSEE AND KIRIX AGREE THAT THE UN CONVENTION WILL NOT APPLY TO THIS AGREEMENT.
15. Export Law Assurances. Licensee may not use or otherwise export or re-export the Product except as authorized by United States law and the laws of the jurisdiction in which the Product is obtained. In particular, but without limitation, the Product may not be exported or re-exported (including, without limitation, any download or delivery): (i) into (or to a national or resident of) any U.S. embargoed country; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders. By downloading or using the Product, Licensee represents and warrants that Licensee is not located in, under control of, or a national or resident of any country to which export is prohibited or on any list maintained by the U.S. government prohibiting delivery of the Product to Licensee.
16. Waiver. Kirix’s failure to exercise, or delay in exercising, any of its rights under this Agreement will not constitute or be deemed a waiver or forfeiture of those rights.
17. English Language. Kirix and Licensee have required that this Agreement and all documents related to this Agreement be drawn up in English. For Customers resident in Quebec, France and other francophone jurisdictions: Kirix et Licensee ont demandé expressément qua la présente entente et tous les document et avis connexes soient rédigés en anglais.
18. Customer Reference. Licensee agrees that Kirix may refer to Licensee as a customer of Kirix in sales presentations, marketing vehicles and activities including but not limited to reference on Kirix’s Internet web site.
19. Entire Agreement. This Agreement is the entire agreement between Licensee and Kirix concerning the Product and it supersedes any prior or contemporaneous written or oral agreements with respect to the subject matter, and may not be amended or modified except by subsequent agreement in writing by Licensee and an officer of Kirix. Any purchase order issued by Licensee and accepted by Kirix is for convenience only and any terms and conditions on any Licensee purchase order or other Licensee document are agreed to be null and void and of no effect.
20. Maintenance & Support. Kirix will, upon payment by Licensee of its license fee for the Product, provide Licensee with email support during the term of Licensee’s license for the Product. All maintenance and support for the Product will be in accordance with Kirix’s then-current maintenance and support policy posted at www.kirix.com/strata_maintenance. Maintenance services include Kirix making available for download by Licensee, or delivering to Licensee, copies of releases, updates, modifications or additions to the Product that are made generally-available at no cost by Kirix to licensees of the Product that participate in maintenance. To be eligible to purchase maintenance services for a Perpetual license, maintenance services must be purchased at the same time as a Perpetual license. If Licensee purchases a Perpetual license with maintenance services, maintenance will be provided for one year from commencement of the Perpetual license (the “Initial Maintenance Term”). Maintenance services are included in the pricing for Periodic licenses and are neither provided nor available for Evaluation or trial-period licenses of Product. Prior to the expiration of the Initial Maintenance Term and each Renewal Maintenance Term (as defined below), Licensee, if Perpetual, may purchase additional successive annual maintenance periods (each, a “Renewal Maintenance Term”). For a Perpetual Licensee to maintain its right to maintenance, each Renewal Maintenance Term must be paid for by Licensee prior to the expiration of the immediately preceding applicable Initial Maintenance Term or Renewal Maintenance Term or Licensee’s right to maintenance will lapse. For Perpetual Licensees, once Licensee’s right to maintenance has lapsed, Licensee may not reinstate maintenance without paying Kirix’s then-current reinstatement fees. Licensee acknowledges that future major version releases of Product may be made available for a separate license fee. Licensee agrees that Kirix may revise its maintenance and support policy from time to time, with changes effective upon posting of the revised policy. Licensee agrees that any transmissions and submissions to Kirix during the course of maintenance and support by any means or by any media any materials or other information (including, without limitation, ideas, concepts or techniques for new or improved services and products), whether as information, feedback, data, questions, comments, suggestions or the like, are unrestricted and shall be deemed non-confidential and Licensee hereby grants Kirix and its assigns a non-exclusive, royalty-free, worldwide, perpetual, irrevocable license, with the right to sublicense, to use, copy, transmit, distribute, create derivative works of, display and perform those transmission and submissions.
21. Evaluation License & Trial License. Licensee’s use of the Evaluation version of the Product or use of the Product during a trial period is at Licensee’s sole risk. The Product is provided to Licensee in the Evaluation version or for trial without either express or implied warranties of any kind (including those set forth in Section 8 above for fully-licensed versions of the Product), solely on an “as is” basis. Kirix makes no express or implied warranties to Licensee with regard to the Evaluation version of the Product or use of the Product for any trial period, including, without limitation, warranties of merchantability, fitness for any particular purpose or non-infringement of patents, copyrights or other proprietary rights of others. To the maximum extent permitted by law, Kirix will not have any liability or responsibility to Licensee for damages of any kind, including direct, special, punitive, incidental, indirect or consequential damages, arising out of or resulting from the Evaluation version of the Product or any trial period for the Product, any component, documentation, services or materials made available to Licensee in connection with the Evaluation version of the Product or any trial period of the Product under this Agreement or the use or modification of any of them, even if Kirix has been advised of the possibility of the damages, including, without limitation, any damages for lost data, loss of business, cost of replacement products and services or anticipatory profits. In any case, Kirix’s entire liability under any provision of this Agreement for the Evaluation version of the Product or use of the Product for any trial period will be limited to the lesser of the amount actually paid by Licensee to Kirix for the Evaluation version of the Product or the trial period or ten United States dollars ($10.00). Some states do not allow the limitation or exclusion of liability for incidental or consequential damages, or have legislation that restricts the limitation or exclusion of liability, so the above limitation may not apply to you. Licensee acknowledges that the Evaluation version of the Product may contain limited functionality, will cease all operation after a period of 30 days and that cessation of operation may result in the loss of data.