Software as a Service Terms and Conditions

Effective as of Feb 11, 2020

PLEASE READ THE FOLLOWING CAREFULLY BEFORE ACCEPTING THESE TERMS AND REGISTERING FOR, ACCESSING AND/OR USING THE XYTE SERVICE.

By accessing and using the Service (as defined below), you acknowledge that you, on your own behalf as an individual and on behalf of your employer or another legal entity (collectively “you” or “your”), have read and understood and agree to comply with the terms and conditions below (“Terms”), and are entering into a binding legal agreement with Xyte Technologies Ltd. (“Xyte”, “us”, “we” or “our”). If you are entering into these Terms on behalf of your employer or other legal entity, that you have full authority to bind said employer or other legal entity to these Terms. If you do not agree to comply with and be bound by these Terms or do not have authority to bind your employer or other legal entity, please do not accept these Terms or access or use the Service. You hereby waive any applicable rights to require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent not prohibited under applicable law.

In consideration of the mutual covenants and agreements herein contained, and in return for good and valuable consideration, the receipt and adequacy of which is hereby specifically acknowledged, the Parties hereby agree as follows:

1. DEFINITIONS

Capitalized terms used these Terms shall have the meanings set forth in this Section 1 or as otherwise defined elsewhere in these Terms.

    1.1.  “Affiliate”  means any entity which directly or indirectly controls, is controlled by, or is under common control with a party, but only for so long as such control exists, and where “control” means owning 50% or more of the voting equity securities of such entity or the ability to direct managerial decisions or board decisions of such entity.

     1.2.  “Authorized User” means an active employee designated by you to use the Services with respect to which a valid Subscription is purchased from Xyte. 

     1.3.  “Confidential Information” means all proprietary information of a party or which is held by such party under a confidentiality undertaking, in any form, whether of a technological or commercial nature, and including without limitation, formulations, data, technology, know how, designs, inventions, discoveries, processes and models, technology, and any sales, financial, contractual and marketing information and any information of a confidential nature concerning either party’s products or services. Confidential Information shall include information related to the Services and any information relating thereto.

     1.4.  “Customer Data” means any data relating to you (or your end users) provided or made available to Xyte or any Xyte Affiliate under these Terms.  An Order Form may include all data generated pursuant to these Terms by Xyte to the extent it relates to you and your end users or arises from the performance of the Service.

     1.5.  “Digital Products” means any subscriptions or services of your products sold or enabled through the Service to Xyte’s and/or your end users. Digital Products include, but are not limited to warranties, management and monitoring licenses, and other of your digital products, as may be defined by Xyte or you.

     1.6.  “Documentation” means any documentation provided in connection with the Service, including specifications, paperwork, diagnostics, training, and other information related to the use of the Service. 

     1.7.  “Intellectual Property Rights” means all intellectual property and proprietary rights anywhere in the world, whether statutory, common law, or otherwise, including, without limitation, patents (including patent applications and disclosures), copyrights, trademarks and service marks (whether registered or unregistered), logos and devices, trade secrets, know-how, moral rights, or database rights, and all goodwill relating to the foregoing.

     1.8.  “Order Form” means a mutually executed document and/or a purchase order executed through electronic means (e.g., online form or email), that specifies the Service. Each Order Form will be made a part of and will be governed by these Terms. 

     1.9.  “Service” means the software as a service proprietary solution provided by Xyte under these Terms as described in the applicable Order Form.

     1.10.  “Specifications” means the operational and technical description applicable to the Service as set forth in the applicable Order Form.

     1.11.  “Subscription” means a non-exclusive, cancelable sublicense granted by you to an Authorized User to access and use the Service for such Authorized User’s internal or personal use and not for redistribution, and otherwise in accordance with the terms of these Terms.

2. THE SERVICE

     2.1.  Service. Xyte will provide you the Service as set forth in each Order Form entered into by the parties from time to time. 

     2.2. Updates. As a part of Xyte’s maintenance of the Service, from time to time Xyte may develop, implement and maintain updates, enhancements, improvements, fixes or solutions to problems or bugs in the Service (which, for the avoidance of doubt, do not include new features or functionality) (“Updates”). To the extent made generally available by Xyte to its customers, Xyte will incorporate such Updates and provide you with any necessary Documentation related to such Updates. Any Updates by Xyte will not degrade the capabilities, or features of the Service, unless otherwise agreed between the Parties. For the removal of doubt, any references in these Terms to the Service shall also include the Updates.

     2.3.  Support. During the Term and subject to the payment of the applicable fees, Xyte will provide you with reasonable assistance, support, consulting and training services for the Service via telephone, facsimile or email, to answer any questions or concerns relating to the Service.

     2.4.  Digital Products. You shall have the right to propose to your or Xyte’s end users, Digital Products through the Service. 

        Each Digital Product that is purchased or enabled through the Service, whether it is transacted through Xyte’s billing engine or through an external purchase order, shall entitle Xyte to the  agreed fees featured in an applicable purchase order.

     2.5.  Account. In order to use the Service, you may have to create an account (“Account”). You must not allow anyone other than you or, if applicable, an Authorized User to access and use the Account. You acknowledge and agree: (i) not to exceed the aggregate number of Authorized Users designated in the Order Form unless you first notify Xyte in writing and pay Xyte the required additional Subscription fees (if any); (ii) to provide accurate and complete Account and login information; (iii) to keep, and ensure that Authorized Users keep, all Account login details and passwords secure at all times; (iv) to remain solely responsible and liable for the activity that occurs in connection with your Account; (v) that the login details for each Authorized User may only be used by that Authorized User, and that multiple people may not share the same login details; and (vi) to promptly notify Xyte in writing if you become aware of any unauthorized access or use of its Account or the Service.

3. LICENSE

     3.1.  Grant of License. We hereby grant to you, during the term of these Terms, a non-exclusive, fully-paid, non-transferable, non-assignable, non-sublicensable and fully revocable  right and license to: (a) access and use the Service for the purposes contemplated herein or in an applicable Order Form; (b) use the Documentation provided by us internally and reproduce it, solely to the extent necessary for the use of the Service as permitted herein; and (c) grant Subscriptions to your end users subject to the limitations on the number Subscriptions set forth in the applicable Order Form, which may include generating login credentials for each such Authorized User. 

     3.2.  License Restrictions. Other than as permitted under these Terms, you will not and will ensure that your Authorized Users do not: (a) use the Service in any manner or for any purpose other than as expressly permitted by these Terms or the Documentation; (b) use the Service in violation of any applicable law; (c) give, sell, lend, rent, resell, lease, timeshare, disclose, publish, market, sublicense, distribute or otherwise transfer any portion of the Service to any third party; (d) modify, translate, patch, alter, tamper with, repair, change or otherwise create derivative works of any software included in or used to provide the Service; (e) reverse engineer, disassemble or decompile the Service or any software contained therein, or attempt to discover or recreate the source code to any Service or software included therein; (f) remove, deface, obscure or alter any proprietary rights notices related to the Service or any portion thereof or use or display logos of the Service differing from Xyte’s own, without Xyte’s prior written approval; (g) access or use the Service in a way intended to avoid incurring fees or exceeding Subscriptions, usage limits or quotas set forth in any applicable Order Form; (h) circumvent, disable or otherwise interfere with security-related features of the Service or features that prevent or restrict use or copying of any content or that enforce limitations on use of the Service; (i) use any robot, spider, scraper or other automated means to access the Service for any purpose; (j) take any action that imposes or may impose (at Xyte’s sole discretion) an unreasonable or disproportionately large load on Xyte’s infrastructure; (k) interfere or attempt to interfere with the integrity or proper working of the Service, or any related activities; (l) use the Service to develop a competing service or product; and/or (m) use the Service to send unsolicited or unauthorized commercial communications. To the extent applicable, you shall remain liable to Xyte for any act or omission of an Authorized User that would constitute a breach of these Terms as if such acts or omissions were by you.

     3.3.  License granted by you.

          3.3.1.  While using the Service, certain Customer Data will be made available to Xyte. You hereby grant Xyte, a non-exclusive, worldwide, royalty-free, fully paid up license to: (i) use, process, display, copy and store any Customer Data solely to the extent necessary for Xyte to provide the Service; (ii) to administer and make improvements to the Service; (iii) to collect and analyze anonymous information. You acknowledge that the Service does not operate as an archive or file storage service. You are solely responsible for the backup of Customer Data and you alone can implement backup plans and safeguards appropriate for your requirements.

          3.3.2  You shall own all rights, title and interest in and to all of the Customer Data. You represent and warrant that you own or has obtained the rights to all of the rights subsisting in the Customer Data and you have the right to provide Xyte the license granted herein to use such Customer Data in accordance with these Terms. You shall have sole responsibility for the reliability, integrity, accuracy and quality of the Customer Data.

          3.3.3.  You shall display all privacy notices, have at all times all appropriate legal bases, and comply at all times with all applicable privacy and data protection laws and regulations (including, if applicable, the EU General Data Protection Regulation (“GDPR”)), for allowing Xyte to use the personal data (if any) in accordance with these Terms (including, without limitation, the provision of such data to Xyte, the transfer of such data by Xyte to its Affiliates and subcontractors, including transfers outside of the European Economic Area). To the extent that you are subject to the GDPR, you shall execute the Xyte’s Data Processing Agreement which can be found at:  (“DPA”) available upon request and return it signed to Xyte. In the event you fail to comply with any data protection or privacy law or regulation, the GDPR and/or any provision of the DPA, and/or fail to return an executed version of the DPA, then: (a) to the maximum extent permitted by law, you shall be fully liable for any such breach, violation, infringement and/or processing of personal data without a DPA by Xyte and Xyte’s Affiliates (including, without limitation, their employees, officers, directors, subcontractors and agents); and (b) in the event of any claim of any kind related to any such breach, violation or infringement and/or any claim or allegation related to processing of personal data without a DPA, you shall fully defend, hold harmless and indemnify Xyte and its Affiliates (including, without limitation, their employees, officers, directors, subcontractors and agents) from and against any and all losses, penalties, fines, damages, liabilities, settlements, costs and expenses, including reasonable attorneys’ fees. Your limitation of liability in these Terms shall not apply in connection with the situations described in (a) and (b) of this Section.

4. OWNERSHIP

     4.1.  Ownership. All right, title, and interest in all of the Service, Documentation, any derivative work made thereto and Xyte’s Confidential Information, including without limitation, any customizations, modifications, improvements, enhancement, updates, upgrades made thereto by any party, and any feedback related thereof, will be owned solely and exclusively by Xyte. 

     4.2.  Ownership and Use of Customer Data. Except as expressly provided in these Terms, you have and will retain exclusive ownership and control over all Customer Data. Notwithstanding the foregoing, Xyte may use the Customer Data in an aggregated anonymized form to further develop Xyte’s products and services, pursuant to the above Section 3.

     4.3.  Limited Rights. Your rights in the Service will be limited to those expressly granted in these Terms. Except as expressly granted in these Terms, neither party will have any other rights of any kind in the other’s Intellectual Property Rights, proprietary technology, websites, products or other proprietary materials. Each party reserves all rights not expressly granted to the other under these Terms.

5. PAYMENT; TAXES

     5.1.  License and Services Fees. In consideration for the licenses and Services provided hereunder, you will pay Xyte the fees as set forth in each Order Form, within 30 days of Xyte’s invoice, unless otherwise set forth in such Order Form. Any amounts due and not paid by you within 15 days of the date on which they are due will be charged default interest at a rate of 1.5% per month, or the maximum rate permitted by applicable law.

     5.2.  Taxes. All amounts payable hereunder shall not be subject to any set-off or deduction. All fees are exclusive of any applicable taxes, duties and similar governmental charges, and, except with respect to income taxes of Xyte, you are responsible for payment of all such amounts, including sales tax, value added tax (VAT), withholding taxes, export, import and other duties imposed by any governmental agency in connection with these Terms. You agree to hold harmless Xyte from all claims and liability arising from your failure to report or pay such taxes, duties or other governmental charges.

6. REPRESENTATIONS, WARRANTIES AND COVENANTS

     6.1.  Representations and Warranties of the Parties. Each party represents, warrants and covenants that: (a) it has the full corporate right, power, and authority to enter into these Terms and perform the obligations and duties hereunder; (b) the execution of these Terms, and the performance of the obligations and duties hereunder, do not and will not violate any agreement to which it is a party or by which it is otherwise bound; and (c) when executed and delivered, these Terms will constitute the legal, valid and binding obligation of each party, enforceable against each, in accordance with its terms.

     6.2.  Xyte Representations. Xyte represents, warrants and covenants that as of the Effective Date: (a) the Service will be performed in conformance, in all material respects, with these Terms, any applicable Order Form, and the applicable Specifications; (b) Xyte is authorized and able to provide the Service hereunder in a good and workmanlike manner; and (c) Xyte has taken reasonable measures to prevent the introduction of any malicious code into your systems by the Service or your use of the Service. In case of failure to the above warranties, you will immediately notify Xyte of such failure, and Xyte will repair or replace any non-conforming part of the Services, or if Xyte cannot do so after using commercially reasonable efforts, Xyte, at your sole remedy, will terminate these Terms and refund any prepaid amounts, prorated to the remaining period of time for which the Service was unused. 

     6.3.  No Further Representations. EXCEPT AS EXPRESSLY PROVIDED IN SECTIONS 6.1 AND 6.2 ABOVE, THE SERVICE PROVIDED IS PROVIDED BY XYTE TO YOU “AS IS” AND XYTE AND ITS SUPPLIERS, IF ANY, MAKE NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, REGARDING THE SERVICE, AND SPECIFICALLY DISCLAIM THE WARRANTIES OF MERCHANTABILITY FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY LAW. XYTE DOES NOT WARRANT THAT THE SERVICE WILL MEET YOUR REQUIREMENTS, OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE.

     6.4.  Malicious Code. XYTE IS NOT RESPONSIBLE FOR, AND THE WARRANTY DOES NOT APPLY TO, ANY DAMAGE RESULTING FROM (INCLUDING, BUT NOT LIMITED TO, ANY DAMAGE TO YOUR ACCOUNT): ANY SECURITY BREACH RESULTING FROM ANY MODIFICATIONS OR ALTERATION OF THE SERVICE, ITS FUNCTIONALITY OR CAPABILITIES USING AND/OR BY MALICIOUS CODE, MALWARE, BOTS, WORMS, TROJANS, BACKDOORS, EXPLOITS, CHEATS, FRAUD, HACKS, HIDDEN DIAGNOSTICS, OR OTHER MECHANISMS TO DISABLE SECURITY OR CONTENT PROTECTION; RESULTING WITH THE DECEPTION OR DEFRAUDING YOU OR OTHERS; THAT MAY HARM THE SERVICE OR YOUR SYSTEMS; AND/OR INFRINGE ANY CONTENT OR VIOLATE PRIVACY RIGHTS.

     6.5.  Additional Disclaimers. Xyte cannot warrant and does not warrant that the content available on the Service is accurate, complete, reliable, current, or error-free. Xyte reserves the right to make changes in or to such content, or any part thereof without the requirement of giving you any notice prior to or after making such changes to such content. Notwithstanding any of the foregoing, in the event that the Service does not accomplish a transaction or any other error that may happen, Xyte is not responsible for any claims, liabilities, expenses, losses and/or costs.

     6.6.  Limitations of Warranty. Without limiting any other provisions limiting liability these Terms, Xyte shall not be liable under any warranty provided herein in the event that: (i) the Service has been subject to misuse, negligence, accident or improper use or maintenance by anyone other than Xyte; (ii) the Service has been modified, repaired or altered by anyone other than Xyte, without Xyte’s express prior written approval; or (iii) the Service has been damaged by causes beyond the reasonable control of Xyte.

7. INDEMNIFICATION

     7.1.  Indemnification. You agree to defend, indemnify and hold harmless Xyte, its Affiliates and its and their respective officers, directors and employees from any third party claims, damages, liabilities, costs and expenses (including reasonable attorney’s fees) arising from: (i) your (or anyone acting on your behalf) unauthorized use of the Service; (ii) your (or anyone acting on your behalf) negligence and/or willful misconduct; and/or (iii) your breach of these Terms. 

     7.2.  Infringement Injunctions. If your permitted use of the Service or the Documentation hereunder is, or in Xyte’s opinion is likely to be, enjoined as an infringement or misappropriation of any third party Intellectual Property Right, Xyte will, at Xyte’s option and expense, either: (a) procure for you the right to continue to use the Service and Documentation under the terms of these Terms; or (b) replace or modify the infringing Service and/or Documentation so that they are non-infringing and substantially equivalent in function to the enjoined Service and/or Documentation.

8. CONFIDENTIALITY

The parties acknowledge and agree that they may exchange Confidential Information during and in connection with the performance of these Terms. The following provisions shall apply to such Confidential Information:

     8.1.  Non-Disclosure of Confidential Information. Each party (for the purposes of this Section ‎8 the “Receiving Party”) shall not disclose to third parties nor use for any purpose other than for the proper fulfilment of the purpose of these Terms any Confidential Information received from the other party (for the purposes of this Section ‎8 the “Disclosing Party”) in whatever form under or in connection with these Terms, without the prior written permission of the Disclosing Party. The Receiving Party shall limit access to Confidential Information to those of its personnel for whom such access is reasonably necessary for the proper performance of these Terms. Such personnel shall be bound by confidentiality obligations not less restrictive than those provided for in these Terms. The Receiving Party shall protect the Confidential Information with the same degree of care, but no less than a reasonable degree of care, to prevent unauthorized disclosure or use of Confidential Information, as the Receiving Party exercises in protecting its own proprietary information of a similar nature.

     8.2.  Restrictions. Confidential Information shall not be deemed to include information which: (a) was in the possession of the Receiving Party prior to disclosure hereunder provided that immediately upon disclosure, Receiving Party brought this fact to the attention of the Disclosing Party; (b) was in the public domain at the time of disclosure or later became part of the public domain without breach of the confidentiality obligations herein contained; and/or (c) was disclosed by a third party without breach of any obligation of confidentiality. Notwithstanding the foregoing, Confidential Information may be disclosed by the Receiving Party pursuant to administrative or judicial action; provided that the Receiving Party shall use its best efforts to maintain the confidentiality of the Confidential Information (e.g., by asserting in such action any applicable privileges), and shall, immediately after gaining knowledge or receiving notice of such action, notify the Disclosing Party thereof and give the Disclosing Party the opportunity to seek any other legal remedies so as to maintain such Confidential Information in confidence; and provided further that only that portion of the Confidential Information which is specifically required by such administrative or judicial action is provided. The Receiving Party shall have the burden of proof of establishing these exceptions. If only a portion of the Confidential Information falls under any of the above subsections, then only that portion of the Confidential Information shall be excluded from the use and disclosure restrictions of these Terms.

     8.3.  Equitable Relief. In recognition of the unique and proprietary nature of the information disclosed by the Disclosing Party, it is agreed that the Disclosing Party’s remedy at law for breach by the Receiving Party of its obligations under this Section ‎8 may be inadequate and the Disclosing Party will, in the event of such breach or threatened breach, be entitled to seek equitable relief, including without limitation, injunctive relief and specific performance, in addition to any other remedies provided hereunder or available at law.

     8.4.  Binding Term. The provisions of this Section ‎8 shall bind the Receiving Party during the Term and shall survive any termination or expiration of these Terms for a period of 5 years thereafter. 

9. PRIVACY AND DATA SECURITY

     9.1.  The parties agree that each party will act as a controller with respect to contact details and similar types of personal data disclosed between the parties under these Terms for business purposes. Each party shall be independently responsible to comply with its obligations as a controller under applicable data protection legislation in connection with the processing of such personal data under these Terms.

     9.2.  Each party shall provide to the other party, as reasonably requested, information, cooperation and assistance, as each party may, from time to time, require to enable the other party to comply with its obligations under applicable data protection legislation as a controller with respect to the processing of personal data under these Terms, only to the extent the other party is reasonably able to do so, taking into account the information it has in its possession and control.

     9.3.  The parties will enter into the DPA in relation to personal data processed in connection with the Service hereunder.

     9.4.  Notwithstanding the foregoing, Xyte may use personal data in an aggregated manner, provided that such data is anonymized, for the purpose of further developing Xyte’s Digital Products and Service.

10. LIMITATION OF LIABILITY

     10.1.  In no event will Xyte be liable towards you, your end-users, or any other third party, under any legal theory (including, without limitation, tort or contract) for any incidental, consequential, indirect, punitive or exemplary damages of any kind, including but not limited to lost profits or loss of goodwill, arising out of or in connection with these Terms, even if Xyte has been advised of the possibility of such damages.

     10.2.  Xyte’s liability under or pursuant to these Terms shall be limited to the amounts paid by you to Xyte pursuant to the applicable Order Form for the Subscription term in which the event giving rise to such liability occurs. 

     10.3.  Without derogating from the foregoing, Xyte’s total aggregate liability hereunder shall not exceed US$100,000 in the aggregate. 

     10.4.  The foregoing limitations shall apply notwithstanding any failure of essential purpose of any limited remedy and are fundamental elements of the bargain between Xyte and you.

11. TERMINATION

     11.1.  Term. These Terms will commence on the Effective Date and will remain in effect for the initial subscription term set forth in an Order Form (“Initial Term”). Thereafter, these Terms will automatically renew for successive terms equal to the original subscription term set forth in an Order Form (each a “Renewal Term” and together with the Initial Term, the “Term”), unless either party gives written notice of its intent to terminate these Terms at least 30 days prior to expiration of the then current term.

     11.2.  Termination for Cause. Either party may terminate these Terms and/or any Order Form in effect at the time by written notice, in the event of any of the following: (a) a material breach by the other party of these Terms and/or any Order Form which is not cured within 30 days of notice thereof; and (b) the institution of bankruptcy, receivership, insolvency, reorganization or other similar proceedings by or against the other party, if such proceedings have not been dismissed or discharged within 60 days after they are instituted.

     11.3.  Effect of Termination.  Upon any termination or expiration of these Terms: (a) all licenses and rights granted hereunder will terminate and Xyte will no longer provide the Services to you; (b) you will cease and cause your Authorized Users to cease using the Service; (c) each party will cease using and promptly return to the other party, or destroy (and certify such destruction in writing), at the other party’s option, all Confidential Information in your possession and any other information or materials provided to it pursuant to these Terms; and (d) per your instructions, Xyte will return to you (or any third party designated by you) all Customer Data (provided that Xyte shall continue to be entitled to use aggregated anonymized Customer Data for the purpose of further developing your Services).

     11.4.  Survival. The rights and obligations of the parties contained in Sections ‎1, ‎3.2 (only the last sentence), ‎4, ‎6.3-‎6.5, ‎7, ‎8, 9, ‎10, ‎11.3, ‎11.4 and ‎12, as well as any section which by its nature should survive termination or expiration of these Terms, will so survive. Additionally, any provision that expressly states that it will survive or which, by its nature, must survive the completion, expiration, termination, or cancellation of these Terms, will survive the completion, expiration, termination, or cancellation of these Terms.

12. GENERAL

     12.1.  Assignment.  You may not assign these Terms, in whole or in part, without Xyte’s prior written consent; provided however, that you may assign your rights or obligations hereunder to your Affiliate. Subject to the foregoing, these Terms will be fully binding upon, inure to the benefit of, and be enforceable by, the parties hereto and their respective successors and assigns. Xyte may assign, transfer and/or subcontract any or all of its rights and obligations hereunder at its discretion. 

     12.2.  Governing Law and Venue. The validity of these Terms and any Order Form, the enforcement of their terms, and the interpretation of the rights and obligations of the parties will be governed by the laws of the State of Israel, without regard to its conflict of laws principles. It is agreed by the parties that any action arising out of, in connection with, or in any way involving these Terms or the parties hereto, will be brought only to the courts with proper venue and jurisdiction and proper venue will lie only in a court of competent jurisdiction located in Tel Aviv-Jaffa. Each party will comply with all applicable statutes, laws, ordinances, regulations, rules, orders and codes in the performance of its obligations hereunder.

     12.3.  Severability. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision of these Terms will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect. Except where otherwise specified, the rights and remedies granted to a party under these Terms are cumulative and in addition to, and not in lieu of, any other rights or remedies which the party may possess at law or in equity.

     12.4.  Waiver. The failure by either party to enforce any provision of these Terms will not constitute a waiver of future enforcement of that or any other provision.

     12.5.  Notices. Any notice shall be deemed given by mail, certified, return receipt requested, personal delivery, electronic mail or by courier to addresses as may be provided by one party to the other. Notice by mail shall be deemed delivered 5 days after the date it was mailed. Personal delivery shall be deemed to occur upon delivery to the receiving party or its office. Notice by courier shall be deemed delivered upon delivery by the courier. Notice by electronic mail will be deemed delivered upon transmission thereof, provided that no “delivery failure” notice is received.

     12.6.  Force Majeure. In no event will either party be liable for any delay or failure to perform its obligations hereunder, where such delay or failure is caused by act of God, disease, pandemic, fire, terrorist act, natural calamity, war, act or order of government, political sanctions, labor dispute or other events beyond their reasonable control to prevent or mitigate.  

     12.7.  Relationship of Parties. Xyte is an independent contractor and nothing herein will be construed to the contrary. Neither party will assume or create any obligations or responsibilities express or implied, on behalf of or in the name of the other party, or bind the other party in any manner or thing whatsoever without such party’s prior written consent. Xyte will use Xyte’s own tools and instruments in providing the Service. Except for those resources that you expressly agree to provide in an Order Form, Xyte will provide all personnel, software and other resources as may be necessary to provide the Service in accordance with these Terms. You will neither have nor exercise disciplinary control or authority over Xyte or Xyte’s employees, representatives or subcontractors. No agent, employee, representative or subcontractor of Xyte will be or be deemed to be the employee, agent, representative or subcontractor of yours.  None of the employer-paid benefits provided by you to your own employees, including but not limited to workers’ compensation insurance and unemployment insurance, are available from you to Xyte or to Xyte’s employees, agents, representatives or subcontractors.

     12.8.  Headings. The captions and headings used in these Terms are inserted for convenience only and will not affect the meaning or interpretation of these Terms.

     12.9.  Publicity. Xyte may use your name and logo to indicate that you are a customer of Xyte on its website, in customer and investor presentations, and press releases. The parties will cooperate to create any and all appropriate public, promotional announcements or press releases relating to the relationship set forth in these Terms.  Subject to the foregoing, neither party will make any public announcement regarding the content of these Terms, without the other party’s prior written approval and consent. 

     12.10.  Written Instrument. These Terms or an Order Form may not be supplemented, amended or modified at any time until the parties execute a written instrument that: (a) must be in a mutually agreed upon written or electronic format, and (b) must be signed by an authorized representative of each party.

     12.11.  Entire Agreement. These Terms, including all addenda, schedules, exhibits, Order Forms  and other documents referred to in these Terms, are hereby incorporated in and made a part of these Terms and contain the complete understanding and agreement of the parties and supersedes all prior or contemporaneous agreements or understandings, oral or written, relating to the subject matter herein. Any waiver, modification or amendment of any provision of these Terms will be effective only if in writing and signed by duly authorized representatives of the parties.

     12.12.  Drafting Ambiguities. Each party has reviewed and revised these Terms. The normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party will not be employed in the interpretation of these Terms.

Last updated: February, 2022

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