Effective as of Feb 11, 2020
THESE CLOUDOS TERMS OF SERVICE (these “TERMS”) GOVERN YOUR AND YOUR USERS’ ACCESS TO AND USE OF THE ONLINE CONTENT, DISTRIBUTION, AND DEVICE MANAGEMENT SERVICES (THE “SERVICES”) OFFERED BY Xyte Technologies LTD (“XYTE”, “WE”, “OUR” OR “US”). BY PLACING AN ORDER, CLICKING TO ACCEPT THESE TERMS, OR USING OR ACCESSING THE SERVICES OR RELATED SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS. IF YOU ARE USING THE SERVICES ON BEHALF OF A COMPANY OR OTHER ENTITY, THEN “CUSTOMER” OR “YOU” MEANS THAT ENTITY, AND YOU ARE BINDING THAT ENTITY TO THESE TERMS. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL POWER AND AUTHORITY TO ENTER INTO THESE TERMS AND THAT, IF CUSTOMER IS AN ENTITY, THESE TERMS AND EACH ORDER FORM IS ENTERED INTO BY AN EMPLOYEE OR AGENT WITH ALL NECESSARY AUTHORITY TO BIND THAT ENTITY TO THESE TERMS. THESE TERMS INCLUDE ANY ORDER FORMS AS WELL AS ANY POLICIES OR EXHIBITS LINKED TO OR REFERENCED IN THESE TERMS.
IF YOU REGISTER FOR A FREE TRIAL OF OUR SERVICES, THE APPLICABLE PROVISIONS OF THESE TERMS WILL GOVERN THAT FREE TRIAL.
The Services are not intended for children under the age of 13. If you are between the ages of 13 and 18 (or between 13 and the age of legal majority in your jurisdiction of residence), you may only use the Services with the consent of your parent or legal guardian who agrees to be bound by these Terms.
We may modify these Terms at any time and in our sole discretion. Changes to these Terms will not apply retroactively and will become effective fourteen days after they are posted or fourteen days after the date of our e-mail notice to you (if provided). The date of the latest revision will be noted at the top of this page. Your use of the Services after the date changes become effective constitutes your acceptance of the modified Terms.
THESE TERMS CONTAIN AN ARBITRATION AGREEMENT, WHICH WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION. UNDER THE ARBITRATION AGREEMENT, (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST XYTE ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS.
Provision of Access. Subject to your compliance with these Terms and payment of applicable fees, XYTE will use commercially reasonable efforts to provide the Services to you, and grants you a limited, non-exclusive, non-transferable, revocable right to access and use the Services with one or more of our Devices, during your applicable subscription term, solely for your internal business purposes.
Use by Others. You may permit your Users to use the Services, provided their use is for your benefit only and in compliance with these Terms. You will be responsible and liable for all Users’ use of the Services and ensuring your Users’ compliance with these Terms.
Subscriptions and Automatic Renewals.For Services that are sold as subscriptions, the term of such subscriptions (“Term”) will be as indicated in the Order Form and will commence on the date of purchase (and not on the date of first use). Unless otherwise provided in an Order Form, the subscription will automaticallyrenew at the end of the applicable Term (“Renewal Term”), and we will automatically charge your credit card on file or bill you if you have pre-approved terms with available credit with us for Renewal Term unless you timely cancel your subscription. XYTE will notify you at the email address we have on file in advance of your Renewal Term, and provide you with an option to cancel your subscription.
Modifications. XYTEreserves the right to make unscheduled updates or enhancements to the Services, and to modify or discontinue, temporarily or permanently, any part of the Services at any time and without notice. XYTE will use commercially reasonable efforts to notify you of the changes but is under no obligation to do so. You agree that XYTE will not be liable to you or any other party for any modification, suspension or deprecation of any material feature or functionality.
Data Usage Limitations. Services may be subject to usage limits specified in your Order Form or Documentation. If you exceed your contractual usage limit, you will be responsible for the overage charges and XYTE will invoice you for such charges, in accordance with the “Fees and Payment Terms” section below. You will also be solely responsible for any charges you incur under a third-party provider data plan.
CUSTOMER RESPONSIBILITIES AND RESTRICTIONS
Customer Responsibilities. Customer will (a) be responsible for the Users’ compliance with these Terms, the Documentation and the applicable Order Forms, (b) be responsible for the accuracy, quality, and legality of Customer Data, the means by which Customer acquired Customer Data, Customer’s use of Customer Data with the Services, and the interoperability of any Third-Party Applications with the Services, (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify XYTE promptly of any such unauthorized access or use, (d) use the Services only in accordance with these Terms, the Documentation, the Acceptable Use Policy, the applicable Order Forms, and applicable laws and government regulations, and (e) comply with terms of service of any Third-Party Applications. Any use of the Services in breach of the foregoing that in XYTE’s judgment threatens the security, integrity, or availability of the Services, may result in immediate suspension of Customer’s subscription or other access to or use of the Services.
Usage Restrictions. Customer will not (a) make the Services available to anyone other than its Users, or use the Services for the benefit of anyone other than its Users, unless expressly stated in an Order Form or the Documentation, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any part of the Services, or include any part of the Services in a service bureau or outsourcing offering, (c) use the Services or any Third-Party Application to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party rights, (d) use the Services or any Third-Party Application to store or transmit malicious or harmful code, (e) interfere with or disrupt the integrity or performance of the Services or data contained therein, (f) attempt to gain unauthorized access to the Services or its related systems or networks, (g) permit direct or indirect access to or use of the Services in a way that circumvents a contractual usage limit, or use the Services to access or use any XYTE intellectual property except as permitted under these Terms, an Order Form, or the Documentation, (h) modify, copy, or create derivative works based on the Services or any part, feature, function or user interface thereof, (i) frame or mirror any part of any the Services, other than framing on Customer's own intranets or otherwise for its own internal business purposes or as permitted in the Documentation, (j) disassemble, reverse engineer, or decompile the Services. You also may not access the Services to (1) evaluate or monitor its functionality or for other benchmarking purposes; (2) copy any ideas, features, functions, or graphics of the Services in an attempt to build a competitive product or service, or (3) determine whether the Services are within the scope of any patent.
SUSPENSION OF SERVICES
XYTE may suspend and deactivate immediately and without notice your use of and access to the Services in the event of a breach or threatened breach of the security or integrity of the Services or a violation or threatened violation of any restrictions or conditions in these Terms, or for other emergency or legal reasons. XYTE reserves the right to audit your account and usage of the Services to confirm that your usage is in accordance with the Documentation and these Terms and any applicable Order Forms. We may also disclose any part of your Customer Data or electronic communication to comply with the law or a government request, or as necessary to protect the rights or property of XYTE or a third party. XYTE may also suspend your access to the Services in the event your payment is overdue. XYTE shall not be liable to you, your Users, or any other third party for any suspension under this Section. XYTE also reserves the right to delete any and all Customer Data from its servers in its reasonable discretion in the event of a suspension under this Section and disable your access to Third-Party Applications. For the avoidance of doubt, you will remain responsible for payment of applicable fees during any suspension period under this Section.
Reservation of Rights. Subject to the limited rights expressly granted hereunder, XYTE and its licensors reserve all of their right, title, and interest in and to the Services, the Devices, the Documentation, the System Data, XYTE Confidential Information, and all related intellectual property rights, including any modifications and derivative works thereof. No rights are granted to you in these Terms other than as expressly set forth herein.
Feedback. You may from time to time provide to XYTE suggestions, comments, corrections, or recommendations for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the Services, the Devices, or other XYTE products or services. Any Feedback you submit to us will not be considered your Confidential Information. XYTE will have full discretion to determine whether to implement the Feedback. You hereby grant to XYTE a worldwide, perpetual, irrevocable, royalty-free, and fully transferable license to incorporate the Feedback into any of XYTE products or services, to use, reproduce, perform, display, distribute, prepare derivative works, and to otherwise fully exercise and exploit the Feedback for any purpose, with no expectation or obligation of remuneration of any kind.
Trademarks. The XYTE name, brands, and logos are trademarks and service marks of XYTE (collectively, the “XYTE Trademarks”), and may be used by you only upon prior written authorization XYTE and in accordance with XYTE style guide available at https://www.SyncPro.io/image-resources.
Publicity. You will not issue a press release or other public statement relating to your relationship with XYTE or these Terms unless pre-approved in writing by XYTE authorized representative. XYTE may identify you as a customer by using your name, trademark and/or logo in its marketing collateral, presentations and websites, in accordance with your branding guidelines provided in writing to XYTE.
Rights in Customer Data. As between the parties, you retain all right, title, and interest in and to Customer Data (excluding any XYTE intellectual property or XYTE Confidential Information contained therein), and are solely responsible for Customer Data, including backing up and storing Customer Data. You hereby grant XYTE a non-exclusive, worldwide, royalty-free right and license to collect, use, copy, store, transmit, modify, and create derivative works of Customer Data solely to the extent necessary to provide the Services.
Representation and Warranty. You hereby represent and warrant that (i) you hold all and exclusive right, title, and interest in and to Customer Data shared by you on or through the Services or that you have secured all necessary licenses or clearances for the use of Customer Data (including without limitation all rights to use, reproduce, distribute, perform, and display Customer Data and to create derivative works of Customer Data) in connection with the Services; and (ii) the use, transmission, and display of Customer Data does not and will not infringe the copyright, patent, trademark, trade secret or other intellectual property right of any third party, or constitute defamation, invasion of privacy, or the violation of any right of publicity, confidentiality, or any other right of any third party.
Services Data. Notwithstanding anything to the contrary, XYTE shall have the right to collect, analyze and aggregate data and other information relating to the provision, use and performance of the Services and shall be free (during and after the Term of your subscription/Order Form(s)) to (a) use such data and other information to develop and improve the Services and other XYTE offerings, and (b) disclose such data and other information solely in an aggregated and anonymized format.
Removal. XYTE reserves the right to remove any Customer Data (including Personal Data – see Section 6) from its servers at any time, for any reason or for no reason at all, though XYTE will make commercially reasonable efforts to alert you of such removal as soon as practicable. XYTE may, but is not obligated to, monitor Customer Data and remove any content or prohibit use of the Services if XYTE believes in its sole discretion the content or use may be (or is alleged to be) in violation of these Terms or any applicable laws or may impact the Services. XYTE does not assume liability for Customer Data. It is your responsibility to maintain on-going back-ups of Customer Data, and XYTE shall have no responsibility to back up your data or any liability to you, your Users, or any other party for failing to back-up your data or for any deletion of your data.
FEES AND PAYMENT TERMS; TAXES
Fees. You will pay all fees specified in the applicable Order Form. Except as otherwise specified in these Terms or in your Order Form, the fees are (i) based on the subscription purchased and not actual usage and (ii) payable in U.S. dollars, are non-cancelable and non-refundable, and no credit will be issued.
Invoicing and Payment. You will provide XYTE or its Authorized Reseller, as applicable, with a valid and updated credit card information, or with a valid purchase order or alternative document acceptable to XYTE or the Authorized Reseller. If you provide credit card information to XYTE or Authorized Reseller, you authorize XYTE or Authorized Reseller to charge such credit card for the purchased services listed in the Order Form for the Initial Term and any Renewal Term(s). Such charges will be made in advance of each subscription cycle. If the Order Form specifies that payment will be by a method other than a credit card, XYTE (or Authorized Reseller, if applicable) will invoice you in advance and otherwise in accordance with the Order Form. Unless otherwise stated in the Order Form, invoiced fees are due in full net 30 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to XYTE and notifying XYTE of any changes to such information.
Overdue Charges. If any invoiced amount is not received by XYTE by the due date, then without limiting XYTE's other rights and remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower and (b) XYTE may condition future subscription renewals and Order Forms on payment terms shorter than those specified in the “Invoicing and Payment” section above.
Payment Disputes. You must initiate any payment disputes within 30 days of the date of the invoice by contacting XYTE at finance@SyncPro.io. Upon expiration of such 30-day period, you will not be entitled to dispute any fees paid or payable to XYTE. The Parties will work together in good faith to resolve billing disputes. A pending billing dispute shall not exempt you from timely paying any undisputed amounts owed. XYTE will not exercise its rights under the “Overdue Charges” or “Suspension of Service and Acceleration” sections if you is disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute. Any disputes that cannot be resolved in accordance with the foregoing shall be handled in accordance with Section 7.5 below.
Suspension for Nonpayment and Acceleration. If any charge owing by you under this or any other agreement for services is 30 days or more overdue, (or 10 or more days overdue in the case of amounts Customer has authorized XYTE to charge to Customer’s credit card), XYTE may, without limiting its other rights and remedies, accelerate your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend the Services until such amounts are paid in full, provided that XYTE will give Customer at least 10 days’ prior notice that its account is overdue before suspending services to Customer. XYTE also reserves the right to remove and delete all Customer Data from its servers in the event of a suspension under this Section.
Taxes. XYTE's fees do not include taxes, levies, duties, or similar governmental assessments, including, for example, value-added, sales, use or withholding taxes (collectively, “Taxes”). You are responsible for paying all Taxes associated with your purchases. If we have the legal obligation to pay or collect Taxes for which you are responsible under this section, we will invoice you and you will pay that amount unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, we are solely responsible for taxes assessable against it based on its income, property and employees.
If you register for a free trial of the Services, XYTE will make the Services available to you on a trial basis free of charge until the earlier of (a) the end of the free trial period for which you registered to use the applicable Services, or (b) the start date of any paid subscriptions ordered by Customer for such Services, or (c) termination by XYTE in its sole discretion. Additional trial terms and conditions may apply if posted at trial registration web page. Any such additional terms and conditions are incorporated into these Terms by reference and are legally binding. ANY DATA OR CONTENT YOU UPLOAD INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR FREE TRIAL WILL OR MAY BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASES APPLICABLE UPGRADED SERVICES, OR EXPORTS SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD. YOU CANNOT TRANSFER DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE FREE TRIAL TO A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL. THEREFORE, IF YOU PURCHASE A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL, YOU MUST EXPORT CUSTOMER DATA BEFORE THE END OF THE TRIAL PERIOD OR CUSTOMER DATA WILL BE PERMANENTLY LOST. DURING THE FREE TRIAL, THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND XYTE SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE SERVICES FOR THE FREE TRIAL PERIOD UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE XYTE'S LIABILITY WITH RESPECT TO THE SERVICES PROVIDED DURING THE FREE TRIAL SHALL NOT EXCEED $500.00. WITHOUT LIMITING THE FOREGOING, XYTE AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A) YOUR USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL MEET CUSTOMER’S REQUIREMENTS, (B) YOUR USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED DURING THE FREE TRIAL PERIOD WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE “LIMITATION OF LIABILITY” SECTION BELOW, YOU SHALL BE FULLY LIABLE UNDER THESE TERMS TO XYTE AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF YOUR USE OF THE SERVICES DURING THE FREE TRIAL PERIOD, ANY BREACH BY YOU OF THESE TERMS AND ANY OF YOUR INDEMNIFICATION OBLIGATIONS UNDER THESE TERMS. YOU SHALL REVIEW THE APPLICABLE SERVICES DOCUMENTATION DURING THE FREE TRIAL PERIOD TO BECOME FAMILIAR WITH THE FEATURES AND FUNCTIONS OF THE SERVICES BEFORE MAKING A PURCHASE.
If you sign up for a free trial of the Services, we may require you to provide a valid credit card or other payment method, and, unless timely canceled, you will be enrolled into a paid subscription to the Services upon expiration of your free trial period.
From time to time, XYTE may offer you an opportunity to test or evaluate free versions of its software or services that may be in development (“Beta Services”). You may choose to try such Beta Services in your sole discretion. Beta Services are intended for internal evaluation purposes only and not for production or commercial use, are not supported, and may be subject to additional terms. Beta Services are not considered “Services” under these Terms, however, all restrictions and obligations contained in these Terms shall apply equally to your use of Beta Services. XYTE may discontinue Beta Services at any time in its sole discretion and may never make them generally available. XYTE will have no liability for any harm or damage arising out of or in connection with your use of Beta Services. You acknowledge and expressly agree that such Beta Services will be provided to you “AS IS”, with NO WARRANTY OR SUPPORT of any kind.
The Services are or may be integrated with Third-Party Applications. These Third-Party Applications may have their own terms and conditions of use and privacy policies and your use of these Third-Party Applications will be governed by and subject to such terms and conditions and privacy policies. You understand and agree that XYTE does not endorse and is not responsible or liable for the behavior, features, or content of any Third-Party Application or for any transaction you may enter into with the provider of any such Third-Party Applications, nor does XYTE warrant the compatibility or continuing compatibility of the Third-Party Applications with the Services.
PRIVACY AND ELECTRONIC COMMUNICATIONS
Each party (the “Receiving Party”) understands and agrees that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party). Confidential Information includes, without limitation, non-public information regarding features, functionality and performance of the Services and the Devices, and business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by the Disclosing Party. The Receiving Party agrees to: (i) take appropriate, commercially reasonable measures to protect such Confidential Information; (ii) use Confidential Information only in connection with these Terms or otherwise for the purpose for which it was disclosed; and (iii) not use or disclose such Confidential Information to any third party without prior express written approval of the Disclosing Party. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public, (b) was in its possession or known by it prior to the disclosure by the Disclosing Party, (c) was rightfully disclosed to it without restriction by a third party, (d) was independently developed without use of any Confidential Information of the Disclosing Party. If any Confidential Information is required to be disclosed by law, it may be disclosed to the extent of the requirement, subject to prior notification to the Disclosing Party. These obligations of confidentiality will continue for a period of five (5) years from the date of the disclosure of Confidential Information, except that confidentiality obligation with respect to information that is a trade secret will continue for as long as information remains a trade secret under applicable law. The Receiving Party acknowledges that an unauthorized disclosure of Confidential Information will cause irreparable harm to the Disclosing Party for which damages alone will not be a sufficient remedy. Accordingly, the Receiving Party agrees that, in addition to all other remedies available to the Disclosing Party in an action at law, in the event of any breach or threatened breach by the Receiving Party of the terms of these Confidentiality obligations, the Disclosing Party will, without the necessity of proving actual damages or posting any bond or other security, be entitled to temporary or permanent injunctive relief.
13. DISCLAIMER OF WARRANTIES
THE SERVICES AND ANY ASSOCIATED SOFTWARE OR FIRMWARE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. XYTE DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM YOUR USE OF THE SERVICES, OR THAT THE SERVICES, SOFTWARE OR FIRMWARE WILL BE EFFECTIVE, ACCURATE, OR RELIABLE. EXCEPT AS SET FORTH EXPRESSLY HEREIN, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, XYTE EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
A limited hardware warranty is offered for XYTE Devices.
LIMITATION OF LIABILITY
Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF XYTE TOGETHER WITH ANY OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THESE TERMS EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER UNDER THESE TERMS FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE SIX MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT YOUR OR YOUR AFFILIATES’ PAYMENT OBLIGATIONS UNDER THESE TERMS.
Exclusion of Consequential and Related Damages. IN NO EVENT WILL XYTE OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF XYTE OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF XYTE'S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
IF YOU ARE FROM NEW JERSEY, THE FOREGOING TERMS IN THE SECTIONS TITLED “Disclaimer OF WARRANTIES” AND “Limitations of Liability” ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF SUCH SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF SUCH SECTIONS.
You will defend, indemnify, and hold harmless XYTE and its Affiliates, suppliers and Authorized Resellers, and their respective employees, officers, directors, stockholders and agents (each of the foregoing, an “Indemnified Party”) against any actual or threatened claim, loss, liability, proceeding, governmental investigation or enforcement action arising out of or relating to your activities under these Terms, your use or misuse of the Services or the Devices, and any claims related to Customer Data (a “Claim”). Each Indemnified Party reserves the right, at your expense, to retain separate counsel for themselves in connection with any Claim or, if you have not responded reasonably to the applicable Claim, to assume the exclusive defense and control of any Claim in which you are a named party and that is otherwise subject to indemnification under this Section. You will pay all costs, reasonable attorneys’ fees and any settlement amounts or damages awarded against an Indemnified Party in connection with any Claim. You will also be liable to the applicable Indemnified Parties for any costs and attorneys’ fees they incur to successfully establish or enforce their right to indemnification under this Section.
The Services are controlled, operated, and administered by XYTE from its principal offices located in the U.S.A. XYTE makes no representation that the Services are appropriate or available for use at locations outside the U.S.A. If you access the Services from a location outside of the U.S.A., you are responsible for compliance with all local laws or regulations where you reside.
TERM AND TERMINATION
Term. The term of this agreement commences on the date you first accept these Terms and continues until all subscriptions have expired or these Terms have been terminated. For regular subscriptions, a Renewal Term will begin automatically unless either party provides notice of termination at least thirty (30) days prior to the commencement of the next Renewal Term.
Termination for Cause. Either party may terminate this agreement upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period. XYTE may also terminate this agreement upon 10 days written notice for your payment default if the default remains uncured after the 10-day notice period.
Effect of Expiration or Termination and Survival. Upon termination or expiration of these Terms and corresponding Order Forms, all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such expiration or termination will survive, including any outstanding payments still owed by you as of the date of expiration or termination, all conditions and restrictions on use of the Services, the terms and conditions relating to proprietary rights and confidentiality, disclaimers, indemnification, limitations of liability and termination and the general provisions below. We may also delete any and all Customer Data from our servers upon expiration or termination of your subscription and/or these Terms.
You may not remove or export from the United States or allow the export or re-export of the Services, Devices, Documentation, and anything related thereto, or any direct product thereof, in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. You will comply with all applicable import, re-import, export, and re-export control laws and regulations, including the Export Administration Regulations, the International Traffic in Arms Regulations, and country-specific economic sanctions programs implemented by the Office of Foreign Assets Control. You are solely responsible for compliance related to the manner in which you use the Services, Devices, Documentation, and any related XYTE products or services, including without limitation your distribution of the Services or the Devices.
Governing Law and Jurisdiction.
These Terms shall be governed by the substantive laws of the State of California without regard to its conflict of laws provisions. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. In the event of any litigation arising out of or relating to these Terms, the parties agree to submit to the exclusive personal jurisdiction of the federal and state courts located in the County of Santa Clara, California for any actions for which the parties retain the right to seek relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of the parties’ intellectual property rights, as set forth in the Arbitration Agreement below.
BINDING ARBITRATION AND CLASS ACTION WAIVER
Agreement to Arbitrate. This Section 20 is referred to in these Terms as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and XYTE, whether arising out of or relating to these Terms, the Services, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement. This Arbitration Agreement does not preclude either party from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. Further, notwithstanding this Agreement to Arbitrate, you or us may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy or unauthorized use of intellectual property in state or federal court with jurisdiction or in the U.S. Patent and Trademark Office to protect intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction to the extent such claims do not seek equitable relief.
Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under these Terms and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Unless the parties agree otherwise, any arbitration hearing will take place in Santa Clara County, California. If your claim is for $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND XYTE AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND XYTE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S).
Consolidation, joinder. If more than one arbitration is commenced under this Arbitration Agreement and any party contends that two or more arbitrations are substantially related and that the issues should be heard in one proceeding, the arbitrator selected in the first-filed proceeding shall determine whether, in the interests of justice and efficiency, the proceedings should be consolidated before that arbitrator.
Notice Requirement and Informal Dispute Resolution
Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. The Notice to XYTE must be sent by certified mail and addressed to: Attn: Legal, 983-A University Ave., Los Gatos, CA 95032. After the Notice is received, the parties will attempt in good faith to resolve the claim or dispute informally. If the parties do not resolve the claim or dispute within forty-five (45) days after the date Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
Entire Agreement and Order of Precedence. These Terms form the entire agreement between XYTE and Customer regarding Customer’s use of the Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. The parties agree that any term or condition stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) these Terms, and (3) the Documentation. Titles and headings of sections of these Terms are for convenience only and shall not affect the construction of any provision of these Terms.
Relationship of the Parties. The parties are independent contractors. These Terms does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
Assignment. Customer may not, without XYTE'S prior written consent, assign, delegate, or otherwise transfer any part of these Terms, or any of its rights or obligations under these Terms, to any party, whether voluntarily or by operation of law, including by way of sale of assets, merger or consolidation. XYTE may freely assign or transfer these Terms.
Third-Party Beneficiaries. Other than in connection with indemnification obligations, there are no third-party beneficiaries under these Terms.
Waiver. No failure or delay by either party in exercising any right under these Terms will constitute a waiver of that right.
Notice. Except as otherwise specified in these Terms, all notices related to these Terms will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c) except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to Customer will be addressed to the relevant billing contact designated by Customer. All other notices to Customer will be addressed to the relevant Services administrator or representative designated by Customer.
Severability. If any provision of these Terms is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of these Terms will remain in effect.
Force Majeure. XYTE shall not be liable to you or any third party for any delay or non-performance of its obligations under these Terms arising from any cause or causes beyond its reasonable control or reasonable control of its suppliers or Authorized Resellers, including, without limitation, any of the following: acts of God, war, fire, flood, civil unrest or commotions, disease, epidemic, pandemic, embargos, or government intervention or action.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Authorized Reseller(s”) means a reseller, distributor or another channel partner authorized in writing by XYTE to sell the Devices or subscriptions to the Services and related products and applications.
“XYTE, “we”, “our” or “ours” shall refer to Xyte Technologies LTD and its subsidiaries and Affiliates.
“Customer” or “you”, “your” or “yours” means in the case of an individual accepting these Terms on his or her own behalf, such individual, or in the case of an individual accepting these Terms on behalf of a XYTE or other legal entity, the XYTE or other legal entity for which such individual is accepting these Terms, and its Affiliates (for so long as they remain Affiliates) which have entered into Order Forms.
“Customer Data” means Customer’s electronic data, information or other content, in any form or medium (whether in text, pictures, audio, video, logos, works copy or other materials), that the Customer shares, uploads or submits through the Services, or that incorporates or is derived from the processing of such information, data or content by or through the Services, excluding System Data.
“Devices” means XYTE hardware devices purchased either directly from XYTE or from one of its Authorized Resellers.
“Documentation” means manuals, specifications, instructions and other documents and materials that XYTE provides or may provide or make available to you in any form or medium which describes the functionality, components, features or requirements of Hardware Devices or Services, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.
“Order Form” means an ordering document or online order specifying the Services to be provided under these Terms that is entered into between Customer and XYTE or any of their respective Affiliates, including any addenda and supplements thereto. By entering into an Order Form, an Affiliate agrees to be bound by these Terms as if it were an original party.
"Third-Party Applications" means any products, content, services, information, websites, devices or other materials that are owned by third parties and are incorporated or integrated into or accessible through the Services or the Devices.
“System Data” means data regarding the performance, availability, usage, integrity and/or security of the Services.
“User" means an individual or entity who is authorized by Customer to use the Services, for whom Customer has purchased a subscription (or in the case of any Services provided by XYTE without charge, for whom the Services have been provisioned), and to whom Customer (or, when applicable, XYTE at Customer’s request) has supplied a user identification and password to for the Services. Users may include, for example, Authorized Resellers, employees, consultants, contractors, and other agents of Customer, and third parties with whom Customer transacts business. The customer is responsible for all of the Users using the Services under Customer’s account.