Trial Request for Kynex

To complete your trial request, please read the following agreement and either Accept or Decline at the bottom:

As of the Effective Date Numerix and Evaluator (collectively and individually, Numerix and Evaluator are referred to as “Disclosing Party” or “Receiving Party” as appropriate) wish to protect and preserve the confidential and/or proprietary nature of information and materials which may be disclosed or made available to each other in connection with certain discussions or dealings between the parties relating to the evaluation of the Software (defined below) by Evaluator (the “Purpose”) pursuant to this Mutual Confidentiality and Non-Disclosure Agreement for Evaluation of Software (this “Agreement”).

1. CONFIDENTIAL INFORMATION/SOFTWARE

(a) “Confidential Information” means non-public information in any form or medium disclosed by or on behalf of a disclosing party (“Disclosing Party”) prior to, on or after the Effective Date that a Disclosing Party either designates as being confidential or which, based upon the nature of the information or the circumstances surrounding its disclosure, the receiving party (“Receiving Party”) should know is confidential or proprietary information. Confidential Information includes, but is not limited to, information relating to released or unreleased Disclosing Party software products (including without limitation, in the case of Numerix, the Software itself), the marketing or promotion of any Disclosing Party product, Disclosing Party’s business policies or practices, financial information, technical information, computer systems, infrastructure designs, data, analysis, compilations and studies. Confidential Information shall not include any information that: (i) is or subsequently becomes publicly available without Receiving Party’s breach of any obligation owed to Disclosing Party; (ii) became known to Receiving Party prior to Disclosing Party’s disclosure of such information to Receiving Party; (iii) became known to Receiving Party from a source other than Disclosing Party without breach of an obligation of confidentiality owed to Disclosing Party; or (iv) is independently developed by Receiving Party without access to Disclosing Party’s information, as demonstrated by the contemporaneous written records of the Receiving Party.

(b) “Software” means the object code version of any on-premise Numerix software products provided by Numerix during the evaluation period including any code or materials supplied by third party vendors and any accompanying documentation provided to Evaluator by Numerix or its affiliates and used and deployed in Evaluator's own hardware infrastructure.

(c) “Cloud Services” means the means the hosting of the Software by Numerix’s third party suppliers using cloud-computing services from Amazon Web Services and/or data resources from Refinitiv US LLC (or such other Third Party Provider as designated by Numerix from time to time). All references to ‘Software’ under this Agreement shall, unless otherwise indicated, include both on-premise Software as well as Cloud Services Software

(d) The parties hereby agree to comply with all applicable laws including laws, regulations, notices and guidelines relating to banking secrecy and personal information privacy (collectively, “Secrecy and Privacy Laws”) and laws governing the import, export and re-export of computer hardware, software and technical data. Evaluator shall not disclose to Numerix any proprietary or personal information of, or relating to, any of its customers without Numerix’s prior written consent. To the extent required by Secrecy and Privacy Laws, Evaluator will notify its customers and obtain specific written consent from such customers prior to disclosing such customer’s proprietary and/or personal information to Numerix or any of its Representatives (defined below). Numerix shall treat such customer information or data disclosed in compliance with this Agreement as the Confidential Information of Evaluator.

2. OBLIGATION OF NON DISCLOSURE

(a) Except as expressly permitted by the Agreement, Receiving Party shall not disclose any Confidential Information to third parties. Receiving Party may disclose Confidential Information, to the minimum extent legally required, in accordance with a judicial or other governmental order, provided Receiving Party shall (i) if such order permits, give Disclosing Party reasonable written notice prior to disclosure , (ii) use commercially reasonable efforts to limit disclosure, obtain confidential treatment or a protective order, and right for the Disclosing Party to participate in the proceeding, and (iii) comply with any applicable protective order or equivalent. Receiving Party shall take all commercially reasonable precautions necessary to safeguard the Confidential Information including those taken by Receiving Party to protect its own similar confidential information, but in no event less than a reasonable level of care. Receiving Party may disclose Confidential Information, on a need-to-know basis, only to Receiving Party’s employees, affiliates, agents or representatives who are subject to confidentiality, non-disclosure, and use restrictions, no less restrictive or protective of the Disclosing Party’s Confidential Information than the terms of this Agreement during and after their engagement with Receiving Party (collectively, “Representatives”). Receiving Party shall be liable for all acts and omissions of its Representatives. The Receiving Party shall not use the Disclosing Party’s Confidential Information for any purposes other than the Purpose.

(b) Evaluator shall not copy, reverse engineer, decompile or disassemble the Software nor utilize the Software for any purpose other than as expressly authorized hereunder, and any failure to comply with this obligation shall be deemed a material breach.

3. EVALUATION

(a) For valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the parties, Numerix hereby grants Evaluator, subject to the terms and conditions of this Agreement, a personal, non-transferable, non-exclusive, revocable license to use the Software, in the case of on-premise Software on a single computer at the address set forth above, and in the case of Cloud Services, via logins to be provided by Numerix, for an evaluation period to be agreed upon immediately following the Effective Date (subject to earlier termination of this Agreement), only for non-production, non-commercial, test purposes, solely to evaluate and test the functionality thereof (the “Trial Period”). Evaluator may not share any login credentials, outputs or results from the Software or Cloud Services with any other person. Any use of the Software by Evaluator other than as expressly set forth in this Section 3(a) is prohibited. The license set forth in this Section 3(a) may be terminated by either party upon written notice to the other party. Numerix’s obligations under this Agreement are not contingent on the delivery of any future functionality or features of the Software under a future separate agreement with Evaluator and the use by Evaluator of the Software under this Agreement is not a guarantee of future Software features. As between the parties, all rights, title and interest in and to the Software (including without limitation, any improvement, enhancement, modification translation, adaptation and derivative work thereof or thereto), and further including, without limitation, all intellectual property rights, belong to Numerix and Numerix holds title to each copy of the Software, and any portion thereof. Evaluator hereby assigns to Numerix all rights, title and interest in and to any feedback provided by Evaluator or its Representatives concerning the Software such as reliability, functionality or performance thereof. All rights in and to the Software not expressly granted hereunder are reserved by Numerix and its licensors.

(b) THE SOFTWARE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FEATURES OR FUNCTIONALITY OR FITNESS FOR A PARTICULAR PURPOSE AND EVALUATOR ASSUMES THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE. NUMERIX MAY CHANGE OR MODIFY THE SOFTWARE AT ANY TIME.

(c) SUBJECT TO CLAUSE 3(d), TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL NUMERIX OR ANY OF ITS REPRESENTATIVES, AFFILIATES OR SUPPLIERS BE LIABLE FOR DIRECT, INDIRECT, OR CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL OR SIMILAR DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, SUCH AS (BUT NOT LIMITED TO) LOST PROFITS, ANY CORRUPTION, DAMAGE, LOSS OR MISTRANSMISSION OF DATA OR GOODWILL, USE OF MONEY OR USE OF THE SOFTWARE, INTERRUPTION IN USE OR AVAILABILITY OF DATA, OR SECURITY OF DATA DURING TRANSMISSION VIA PUBLIC TELECOMMUNICATIONS FACILITIES, STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS OR THE SPECIFIC RESULTS OBTAINED, THROUGH THE USE OR INABILITY TO USE THE SOFTWARE, EVEN IF NUMERIX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR DAMAGES TO, OR ANY CLAIM BY, ANY THIRD PARTY. Evaluator acknowledges that the foregoing limitations and exclusions of liability are reasonable in light of the fact that Numerix is providing the Software for evaluation as contemplated herein free of charge. In the event that any of the foregoing limitations or exclusions are held to be unenforceable in whole or in part, Numerix’s aggregate liability (excluding any liability that is subject to Clause 3(d)) shall in all events be limited to five hundred dollars ($500).

(d) The parties’ liability for death or personal injury caused by negligence is unlimited. Each party’s liability for fraudulent misrepresentation is unlimited. Numerix’s liability for direct damages to, or loss of, tangible property caused by Numerix’s negligence shall be limited to five hundred dollars ($500).

4. NOTICE OF DISCLOSURE

If an unauthorized use or disclosure of Confidential Information in the possession of the Receiving Party or its Representatives occurs, the Receiving Party will promptly notify the Disclosing Party and take, at its expense, all commercially reasonable steps to recover the Disclosing Party’s Confidential Information and to prevent its subsequent unauthorized use or dissemination. If the Receiving Party fails to take these steps in a timely and adequate manner, the Disclosing Party may take them at the Receiving Party’s expense, and the Receiving Party will provide the Disclosing Party with its reasonable cooperation in such actions that the Disclosing Party may request.

5. RETURN OF INFORMATION

Upon the request of the Disclosing Party, Receiving Party shall return all originals, copies, reproductions, and summaries of Confidential Information, or at Disclosing Party’s option, certify destruction of the same.

6. INJUNCTIVE RELIEF

Receiving Party acknowledges that monetary damages may not be a sufficient remedy for unauthorized disclosure of Confidential Information and that Disclosing Party shall be entitled to seek, without waiving any other rights or remedies, to such injunctive and other equitable relief (without bond and without the necessity of showing actual monetary damages) as may be deemed proper by a court. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement, but shall be in addition to all other remedies available at law or in equity.

7. INSPECTION

Disclosing Party may, upon reasonable prior notice to Receiving Party, request (i) documentation as reasonably necessary to verify Receiving Party’s compliance with this Agreement; and (ii) a written certification from an officer of Receiving Party certifying that Receiving Party is in full compliance with the terms and conditions of this Agreement. If Disclosing Party reasonably determines that such documentation does not demonstrate Receiving Party’s compliance with this Agreement, then Disclosing Party shall be entitled to visit Receiving Party’s premises, with reasonable prior notice and during normal business hours, to review Receiving Party’s compliance with the terms of this Agreement.

8.TERMS APPLYING TO CLOUD SERVICES ONLY

(a) Evaluator acknowledges that the Cloud Services are not designed for use with production data (including business content and personal information) and accordingly, Evaluator shall not include any production data in Evaluator’s content or use the services for any commercial purpose.

(b) Evaluator will remain solely responsible for all data, code, content, software, and/or third-party software tools it uploads to or uses within the Cloud Services (“Evaluator Data”). Evaluator may upload Evaluator Data to the Cloud Services at its own risk. Evaluator will retain ownership of its Evaluator Data. Evaluator acknowledges that use of the Cloud Services involves transmission of data over the Internet and may be subject to unauthorized access. Evaluator is solely responsible for securing its access credentials and must promptly notify Numerix of any suspected breach.

(c) Evaluator will grant Numerix a limited, non-exclusive license to use, access, process, and display such Evaluator Data solely as needed to operate and support the Cloud Services during the evaluation. Numerix may use de-identified, aggregated data derived from Evaluator’s use of the Cloud Services for internal analytics, benchmarking, and product improvement purposes.

(d) Upon expiration of the Trial Period or termination of this Agreement (whichever is earlier), Evaluator shall delete all Evaluator Data from the Cloud Services and, upon Numerix’s request, certify such deletion in writing within three business days. Numerix may delete Evaluator Data at any time, including without notice, and has no obligation to back up or retain such content.

(e) Evaluator shall not:

(i) reverse engineer, decompile, or disassemble any part of the Cloud Services;

(ii) conduct or allow security testing, including penetration and vulnerability scans, port and service identification, password cracking, remote access testing, or similar activities;

(iii) publish or disclose performance or benchmark results related to the Cloud Services;

(iv) combine or integrate any open-source software with the Cloud Services in a manner that would subject the Cloud Services or any part of it to open-source license obligations.

(v) sell, license, sublicense, rent, host, outsource, or otherwise make the Cloud Services or access to it available to third parties for commercial use.

(vi) Evaluator acknowledges that Numerix makes no commitments regarding availability, uptime, maintenance, or support of the Cloud Services, and may modify, interrupt, or suspend the Cloud Services at any time without liability.

(vii) Acceptable Use Policy. Evaluator shall comply with Numerix’s Acceptable Use Policy available at http://www.numerix.com/product/3rd-party-terms-of-service/cloud-provider including all applicable third-party cloud provider terms. Evaluator is solely responsible for the legality, licensing, and security of all software, content, and data it transmits to or uses within the Cloud Services. Numerix reserves the right to remove or disable access to any content that violates applicable terms, and shall have no liability for doing so. Evaluator agrees to defend and indemnify Numerix against any claims arising from its breach of this section.

9. MISCELLANEOUS

(a) This Agreement is effective from the Effective Date and shall continue (except for the evaluation license of the Software which may expire or terminate prior to the expiration or termination of this Agreement) in effect until terminated upon written notice to the other party. Subject to any longer period required by Secrecy and Privacy Laws, the protections and restrictions applicable to Disclosing Party’s Confidential Information shall survive for a period of five (5) years from the time of Disclosing Party’s last disclosure of such Confidential Information, provided, however such restrictions and protections applicable to Confidential Information related Disclosing Party’s trade secrets shall survive in perpetuity.

(b) All Confidential Information is and shall remain the property of Disclosing Party or its suppliers and licensors, as applicable. Except as expressly set forth in Section 3(a), Disclosing Party does not grant Receiving Party any express or implied right to or under any Disclosing Party patents, copyrights, trademarks, or trade secrets.

(c) Disclosing Party and Receiving Party will notify the other of any security-related incidents which affect the Disclosing Party's Confidential Information.

(d) This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which taken together shall constitute a single agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and shall not be modified except by a written agreement dated subsequent to the Effective Date and manually signed by both parties. None of the provisions of this Agreement shall be deemed to have been waived by any act or acquiescence on the part of Disclosing Party and/or, its Representatives agents, or employees, unless waived by a written instrument manually signed by an authorized officer of Disclosing Party. No waiver of any provision of this Agreement shall constitute a waiver of any other provision(s) or of the same provision on another occasion. For the avoidance of doubt, this Agreement and any amendment thereto may be executed by electronic signature or any form of automated electronic contracting; provided, however, facsimiles of original manual signatures in a fixed and unmodifiable format (e.g. telecopier output or PDF format) on counterpart signatures pages of this Agreement may be exchanged by telecopier or as attachments to e-mail. Such facsimile signatures shall have the same effect as an original manual signature.

(e) If either party retains attorneys to enforce any rights arising out of or relating to this Agreement, the prevailing party with respect to any disputed matter shall be entitled to recover its reasonable attorneys’ fees associated with such retention. This Agreement shall be governed and interpreted in accordance with the laws of New York and both parties further consent to the exclusive jurisdiction of the New York state courts located New York with respect to any matters arising out of this Agreement. Both parties hereby exclude the application of the Uniform Computer Information Transactions Act (“UCITA”), the United Nations Convention on the International Sale of Goods (“CISG”) and any law of any jurisdiction that would apply UCITA or CISG or terms equivalent to UCITA or CISG to this Agreement.

(f) Subject to the limitations set forth in this Agreement, this Agreement will inure to the benefit of and be binding upon the parties, their successors and assigns. Neither party may assign, delegate or otherwise transfer this Agreement or any of its rights or obligations hereunder without the other party's prior approval. Any attempted assignment, delegation, or transfer, in violation of the preceding shall be of no effect.

Do you accept all of the terms of the preceding Mutual Confidentiality and Non-Disclosure Agreement?

If you choose decline, you will not be able to continue. To continue you must accept this agreement.