This Online Usage Agreement (the “Agreement”) sets forth the terms under which you (“Subscriber”) may access and use certain data and services provided to you by Kayrros SAS (“Kayrros”) either during a free trial period or a paid subscription period (the “Term”). By clicking on the button labeled “I agree” at the bottom of the Agreement, you agree to be bound by the following terms and conditions and all additional terms and conditions, if any, applicable to the use of the Products and Services through www.kayrros.com.
During the Term, Kayrros hereby grants to Subscriber a non-exclusive, non-transferable, worldwide license to access and use the products and services Kayrros elects to provide through its internet website located at www.kayrros.com (respectively, the “Products” and “Services”), solely for Subscriber’s own internal purposes. The License shall not include the right of Subscriber to sublicense use of the Products or any part thereof, or otherwise to resell or provide access to the Products or Services to any third party. The License does not convey to Subscriber any Intellectual Property rights in any code, tools, or other Intellectual Property provided by Kayrros hereunder.
Intellectual Property Definition
For purposes of this Agreement, “Intellectual Property” and “IP” mean any and all United States and foreign copyrights, rights in databases, computer programs, source code, IT security information (including without limitation firewall rules and details for obtaining access to infrastructure), trademark rights, patent rights, trade secret rights, inventions, know-how and other intellectual property rights, whether registered or unregistered, and whether statutory or at common law, wherever arising.
IP Ownership by Kayrros
Title and ownership to the Products, the Services, all their components and modules, and any derivative works based thereon, and all documentation relating to the foregoing regardless of form, including all Intellectual Property rights therein (collectively, “Kayrros IP”), shall vest in and at all times remain with Kayrros. Subscriber may not reproduce, store, distribute, display, perform, decompile, reverse engineer, disassemble, or prepare derivative works based on Kayrros IP, except as expressly permitted hereunder.
Availability of Products and Services
Subscriber understands and agrees that from time to time the Products and Services may be inaccessible, unavailable or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which Kayrros may undertake from time to time; or (iii) causes beyond the control of Kayrros or which are not reasonably foreseeable by Kayrros. Subscriber agrees that Kayrros shall have no liability to Subscriber for or by reason of the unavailability of the Products or the Services.
The subscription to Kayrros’s Products and Services is subject to the provision of certain data regarding Subscriber. Such data is used solely for the purposes of the Products or Services and shall not be disclosed to any third party. Subscriber may require Kayrros to correct (if they are wrong), complete or clarify (if they are incomplete or ambiguous), or erase (if such information could not legally be collected) any of its data that Kayrros holds. Subscriber may also refuse the collection and processing of its data, which may make it impossible for Kayrros to provide its Products or Services.
Subscriber may exercise its rights hereunder by sending a message to the following address: email@example.com. Kayrros takes the appropriate physical, technical and organizational measures to ensure the security and confidentiality of the personal data Subscriber chooses to provide to Kayrros, especially to prevent the risk of loss, accidental destruction or alteration of such data, and the unauthorized access by third parties to such data. Subscriber data is being hosted in the European Union.
Indemnity Against Third Party IP Infringement
Kayrros shall indemnify Subscriber against all liabilities, costs, damages and losses suffered or incurred by Subscriber as a result of any claim that the Products or Services have infringed any third party’s Intellectual Property rights arising out of Subscriber’s use of the Products or Services as permitted hereunder.
Limitations on Liability
1. LIMITATION OF LIABILITY
IN NO EVENT WILL EITHER PARTY HERETO BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, INDIRECT OR PUNITIVE DAMAGES, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY. NEITHER PARTY HERETO IS RESPONSIBLE FOR LOST PROFITS OR REVENUE, OR CLAIMS BY ANY PARTY OTHER THAN THE PARTIES HERETO. LIABILITY OF EACH PARTY SHALL BE LIMITED TO THE LESSER OF U.S. $100 OR THE PAYMENTS ACTUALLY MADE HEREUNDER. THE FOREGOING LIMITATIONS OF LIABILITY SHALL NOT APPLY IN RESPECT OF LIABILITY FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
2. GENERAL DISCLAIMER
EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE PRODUCTS AND SERVICES ARE PROVIDED “AS IS” AND KAYRROS DISCLAIMS AND MAKES NO OTHER REPRESENTATIONS OR WARRANTIES EXPRESS OR IMPLIED THAT THE PRODUCTS AND SERVICES WILL OPERATE UNINTERRUPTED OR ERROR FREE. SUBSCRIBER ACCEPTS SOLE RESPONSIBILITY FOR ITS USE OF THE PRODUCTS AND SERVICES. SUBSCRIBER ACKNOWLEDGES AND AGREES THAT THE INFORMATION PROVIDED THROUGH THE PRODUCTS IS FOR INFORMATIONAL PURPOSES ONLY AND SHOULD NOT BE CONSTRUED AS FINANCIAL, LEGAL, INVESTMENT OR OTHER ADVICE OR RECOMMENDATIONS OF ANY KIND. UNDER NO CIRCUMSTANCES SHALL KAYRROS BE LIABLE FOR ANY INVESTMENT DECISIONS MADE BASED ON KAYRROS REPORTS OR ANY OTHER INFORMATION AVAILABLE ON, OR PROJECTIONS, SCENARIOS OR OTHER PRODUCTS GENERATED THROUGH, THE PRODUCTS OR THE SERVICES. KAYRROS TAKES NO RESPONSIBILITY FOR THE COMPLETENESS, ACCURACY OR TIMELINESS OF INFORMATION PROVIDED HEREUNDER.
3. U.S. SECURITIES LAW DISCLAIMERS
THE ENERGY INDUSTRY DATA AND REPORTS PUBLISHED OR PROVIDED BY KAYRROS (“KAYRROS REPORTS”) ARE NOT INTENDED TO CONSTITUTE INVESTMENT ADVICE. KAYRROS IS NOT AN INVESTMENT ADVISER WITHIN THE MEANING OF SECTION 202(A)(11) OF THE U.S. INVESTMENT ADVISERS ACT OF 1940, AS AMENDED, AND IS NOT A COMMODITY TRADING ADVISOR WITHIN THE MEANING OF SECTION 1(a)(12) OF THE U.S. COMMODITY EXCHANGE ACT. KAYRROS REPORTS DO NOT CONTAIN ANY RECOMMENDATIONS TO BUY OR SELL ANY SECURITIES OR COMMODITY INTERESTS AND SHOULD NOT BE RELIED UPON AS THE BASIS FOR ANY TRANSACTIONS IN SECURITIES OR COMMODITY INTERESTS.
KAYRROS AND ITS OWNERS, AFFILIATES AND REPRESENTATIVES ARE NOT (1) INVESTMENT ADVISERS, COMMODITY TRADING ADVISORS, BROKER-DEALERS, FINANCIAL ANALYSTS, FINANCIAL PLANNERS, OR BANKS, (2) COMPENSATED FOR PROVIDING INVESTMENT ADVICE, (3) ARE NOT REGISTERED OR LICENSED WITH ANY REGULATORY BODY IN ANY JURISDICTION AS INVESTMENT ADVISERS, COMMODITY TRADING ADVISORS, FINANCIAL PLANNERS, BROKER-DEALERS, OR IN ANY OTHER CAPACITY (INCLUDING THE U.S. SECURITIES & EXCHANGE COMMISSION (THE “SEC”), THE U.S. COMMODITY FUTURES TRADING COMMISSION (THE “CFTC”), THE U.S. FINANCIAL REGULATORY AUTHORITY (“FINRA”), OR THEIR EQUIVALENTS IN NON-U.S. JURISDICTIONS) AND DO NOT TRADE IN OR RECOMMEND THE SALE OR PURCHASE OF SECURITIES OR COMMODITY INTERESTS, OR (4) LICENSED OR ABLE TO PROVIDE INVESTMENT ADVICE OR RESPOND TO INDIVIDUAL REQUESTS FOR RECOMMENDATIONS TO PURCHASE OR SELL ANY SECURITIES OR COMMODITY INTERESTS. NO REGULATORY BODY IN ANY JURISDICTION (INCLUDING THE SEC, CFTC, FINRA, OR A REGULATORY BODY OF ANY STATE OR ANY NON-U.S. JURISDICTION) HAS ENDORSED KAYRROS OR THE CONTENTS OF KAYRROS CONTENT OR THE ACCURACY, ADEQUACY, SAFETY, RELIABILITY, USEFULNESS, QUALITY OR LEGITIMACY OF ANY INFORMATION PROVIDED TO SUBSCRIBERS IN KAYRROS REPORTS.
KAYRROS REPORTS (1) MAY CONTAIN OPINIONS BASED ON THIRD PARTY SOURCES THAT ARE NOT INDEPENDENTLY VERIFIED FOR ACCURACY OR COMPLETENESS, (2) MAY CONTAIN FORWARD-LOOKING STATEMENTS, WHICH ARE IDENTIFIED BY WORDS SUCH AS “EXPECTS,” “ANTICIPATES,” “BELIEVES,” OR “ESTIMATES,” AND SIMILAR EXPRESSIONS, AND (3) ARE CURRENT AS OF THE DATE OF PUBLICATION BUT MAY CONTAIN INFORMATION OR STATEMENTS THAT ARE SUBJECT TO CHANGE WITHOUT NOTICE. KAYRROS HAS NO OBLIGATION TO UPDATE ANY INFORMATION CONTAINED IN KAYRROS REPORTS, AND ACTUAL OUTCOMES COULD DIFFER MATERIALLY FROM THOSE ANTICIPATED IN KAYRROS REPORTS DUE TO FACTORS BEYOND KAYRROS’S CONTROL. AS A RESULT, THE USE OF KAYRROS REPORTS IS AT SUBSCRIBERS’ OWN RISK.
4. FRENCH SECURITIES LAW DISCLAIMERS
KAYRROS DOES NOT PROVIDE ANY INVESTMENT SERVICE AS DEFINED IN ARTICLES L. 321-1 AND E. 321-1 OF THE FRENCH MONETARY AND FINANCIAL CODE (“THE CODE”), AND CONSEQUENTLY IS NOT REGISTERED AS AN INVESTMENT SERVICE PROVIDER WITHIN THE MEANING OF ARTICLE L. 531-1 OF THE CODE. SIMILARLY, KAYRROS DOES NOT PROVIDE INVESTMENT ADVICE WITHIN THE MEANING OF SUB-ARTICLE 5 OF ARTICLE L. 321-1 OF THE CODE, ADVICE WITH RESPECT TO THE EXECUTION OF BANKING TRANSACTIONS REFERRED TO IN ARTICLE L. 311-1 OF THE CODE, ADVICE WITH RESPECT TO THE PROVISION OF INVESTMENT SERVICES REFERRED TO IN ARTICLE L. 321-1 OF THE CODE, OR ADVICE WITH RESPECT TO THE EXECUTION OF TRANSACTIONS RELATING TO MISCELLANEOUS ASSETS AS DEFINED IN ARTICLE L. 550-1 OF THE CODE. CONSEQUENTLY, KAYRROS IS NOT A FINANCIAL INVESTMENT ADVISER WITHIN THE MEANING OF ARTICLE L. 541-1 OF THE CODE.
This Agreement shall inure to the benefit of, and be binding on, the Parties, their affiliates, successors and administrators, heirs and permitted assigns. Subscriber may not assign or transfer, whether absolutely, by way of security or otherwise, all or any part of its rights or obligations under this Agreement without Kayrros’s prior written consent.
This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York without regard to its conflict of laws principles that would result in the application of another jurisdiction’s laws.
Exclusive Jurisdiction and Venue; Injunctive Relief
The Parties hereto irrevocably consent and waive any objection to the exclusive jurisdiction of and venue in the federal and/or state courts located in New York County, State of New York. The Parties agree and acknowledge that any breach of this Agreement will give rise to irreparable harm for which monetary damages would be inadequate, and that the non-breaching Party shall therefore be entitled, in addition to any other remedies it may be awarded under the law, to obtain timely injunctive relief without being required to post a bond or other security.