MASTER SOFTWARE AS A SERVICE AGREEMENT

PLEASE READ THE FOLLOWING CAREFULLY BEFORE ACCEPTING THIS AGREEMENT AND REGISTERING FOR, ACCESSING AND/OR USING THE SERVICE (AS DEFINED BELOW).

BY SIGNING THIS MASTER SOFTWARE AS A SERVICE AGREEMENT (“AGREEMENT”) OR CLICKING “I AGREE” AND USING THE SERVICE, YOU ACKNOWLEDGE THAT YOU, ON YOUR OWN BEHALF AS AN INDIVIDUAL AND ON BEHALF OF YOUR EMPLOYER, ORGANIZATION OR ANOTHER LEGAL ENTITY (COLLECTIVELY “PARTNER”, “YOU” OR “YOUR”), HAVE READ AND UNDERSTOOD AND AGREE TO COMPLY WITH THE TERMS AND CONDITIONS UNDER THIS AGREEMENT (THE DATE OF SUCH OCCURRENCE BEING THE “EFFECTIVE DATE”), AND ARE ENTERING INTO A BINDING LEGAL AGREEMENT WITH XYTE TECHNOLOGIES LTD. (“XYTE”, “US”, “WE” OR “OUR”) (PARTNER AND XYTE, EACH A “PARTY” AND COLLECTIVELY, THE “PARTIES”). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF YOUR EMPLOYER, ORGANIZATION OR OTHER LEGAL ENTITY, YOU HEREBY REPRESENT THAT YOU HAVE FULL AUTHORITY TO BIND SAID EMPLOYER, ORGANIZATION OR OTHER LEGAL ENTITY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO COMPLY WITH AND BE BOUND BY THIS AGREEMENT OR DO NOT HAVE AUTHORITY TO BIND YOUR EMPLOYER, ORGANIZATION OR OTHER LEGAL ENTITY, PLEASE DO NOT ACCEPT THIS AGREEMENT OR ACCESS OR USE THE SERVICE. YOU HEREBY WAIVE ANY APPLICABLE RIGHTS TO REQUIRE 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 in this Agreement shall have the meanings set forth in this Section 1 or as otherwise defined elsewhere in this Agreement.

1.1. “Affiliate” means with respect to a Party, any entity that, directly or indirectly, through one or more intermediaries, Controls or is Controlled by, or is under common Control with such Party.

1.2. “Authorized User” means an active user designated by Partner to use the Service.

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, software, 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, business or services and any other information that a reasonable person should have reason to believe is proprietary, confidential, or competitively sensitive. It is hereby clarified that any information related to the Service and the terms and conditions of this Agreement, and the terms of any Order Form shall be considered Xyte’s Confidential Information.

1.4. “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the majority ownership of voting securities, election of a majority of directors, acting as or having the power to appoint a general partner of a partnership or manager of a limited liability company, by contract, or otherwise.

1.5. “Device Data” means any data or information related to the Partners’ devices received or collected by Xyte through the use of the Service.

1.6. “Digital Products” means any products or devices sold or licensed by the Partner to the Partner’s Customers and enabled or activated through the Service.

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

1.8. “Intellectual Property Rights” means all the intangible legal rights, titles, and interest embodied in or connected or related to: (i) any and all patents (whether in the form of utility patents or design patents), patent application (whether pending or not), and patent disclosures, together with all reissuances, continuations, continuations-in-part, revisions, extensions, and reexaminations thereof; (ii) all trademarks, service marks, trade dress, designs, trade styles, logos, trade names, and corporate names, together with all translations, adaptations, derivations, and combinations thereof, which have been, or which may be, registered in the future and all applications, registrations, and renewals in connection therewith, and all goodwill associated therewith; (iii) all copyrightable works, copyrights, which have been, or which may be, registered in the future (including the moral rights) and all applications, registrations, and renewals in connection therewith; (iv) all inventions, trade secrets and Confidential Information; (v) all other proprietary rights, industrial rights, commercial rights and any other similar rights, all of the above on a worldwide basis; and (vi) all causes of action for infringement of all of the foregoing.

1.9. “Order Form” means a mutually executed order form, sales order, quote or other ordering document or online registration form for the provision of the Service to Partner. Each Order Form will be made a part of and will be governed by this Agreement.

1.10. “Partner Data” means any data relating to the Partner provided or made available to Xyte or any Xyte Affiliate under this Agreement or any Order Form and shall include all organizational data generated pursuant to this Agreement by Xyte to the extent it relates to Partner or arises from the performance of the Service.

1.11. “Partner’s Customer” means any direct or indirect customer, subcontractor or industry partner of the Partner, such as channel partner, system integrator, reseller, distributor or any other entity that Partner authorizes to connect to and use the Service for either: (I) purchasing through the web shop part of the Service; or (II) interacting with Partner branded devices, for instance collecting and/or displaying data and information from the devices, remote support of the devices, installing software on the devices and configuring the devices.

1.12. “Service” means the Software as a Service (SaaS) solution provided by Xyte under this Agreement as described in the applicable Order Form. Unless the context requires otherwise, references herein to the “Service” shall be deemed to include the Documentation and the Updates (as defined below).

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2. THE SERVICE

2.1. Grant of License. Subject to the terms and conditions of this Agreement, Xyte hereby grants to Partner, during the Term (as defined below), a non-exclusive, limited, fully-paid, non-transferable, non-assignable, revocable right and license to: (a) access and/or use the Service solely for Partner’s internal business purposes and not for redistribution, and otherwise in accordance with the terms of this Agreement; (b) perform testing and evaluation of the Service; and (c) use internally and reproduce the Documentation provided by Xyte solely to the extent necessary for the use of the Service. Partner shall be solely responsible for providing all equipment, systems, assets, access and ancillary goods and services needed to access and use the Service, for ensuring their compatibility with the Service. The Partner may grant access rights to its Authorized Users subject to the limitations set forth in the applicable Order Form, which may include generating login credentials for each such Authorized User. The Partner shall be liable for all activities of its Authorized Users and will be fully responsible for any breach of this Agreement by an Authorized User. Unauthorized access or use of the Service must be immediately reported to Xyte.

2.2 License Restrictions. Other than as permitted under this Agreement, Partner will not and will ensure that its Authorized Users do not: (a) use the Service in any manner or for any purpose other than as expressly permitted by this Agreement or the Documentation; (b) use the Service in violation of any applicable law; (c) sell, lend, rent, resell, lease, sublicense or otherwise transfer any of the rights granted in to Partner hereunder to any third party (including but not limited to offering the Software as part of a time-sharing, outsourcing or service bureau environment); (d) copy, modify, alter, tamper with, repair 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, obscure or alter any proprietary rights notices related to the Service or any portion thereof; (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) distribute, publicly perform, or display any part of the Service (including by incorporation into its products), or use the Service to develop any service or product that is the same as (or substantially similar to) it; (i) disclose the results of any testing or benchmarking of the Service to any third party; (j) circumvent, disable or otherwise interfere with security-related features of the Service or features that enforce use limitations, store or transmit any malicious code (i.e., software viruses, Trojan horses, worms, robots, malware, spyware or other computer instructions, devices, or techniques that erase data or programming, infect, disrupt, damage, disable, or shut down a computer system or any component of such computer system) or other unlawful material in connection with the Service; (k) use any “open source” or “copyleft software” in a manner that would require Xyte to disclose the source code of the Service to any third party; and/or (l) use the Service in a manner that violates or infringes any rights of any third party, including but not limited to, privacy rights, publicity rights or Intellectual Property Rights.

2.3. Suspension. Xyte reserves the right to temporarily suspend the provision of the Service: (a) if Partner is 7 days or more overdue on a payment; (b) if Xyte deems such suspension necessary as a result of Partner’s breach under Section 2.2 (License Restrictions); or (c) as required by law or at the request of governmental entities.

2.4. Expert Services. In addition to the Service, Xyte may make available for Partner access to its established global network of professionals, known as “Xyte Xperts” (“Network”) who share the capability and skills to support the operation of Xyte’s products and services (“Experts”). Xyte may facilitate introductions between the Partner and the applicable Expert for the provision of certain services of in connection with Xyte’s products, such as integration services, software and business development, technical support or other related services (“Expert Services”). Xyte does not assume any liability or responsibility for the Expert Services or any work or action of the Expert. To Xyte’s knowledge, the Expert has the relevant skills to provide the Expert Services, but it is hereby understood that the use of the Expert Services, if any, may be made by the Partner at its sole discretion. Notwithstanding the foregoing, Xyte makes no verifications of the Experts and does not endorse or guarantee the quality, reliability, suitability or legality of the Expert Services. Xyte shall not be held liable for any inaccuracies, errors, omissions or damages arising from the reliance upon the Expert Services by the Partner. The Network is provided by Xyte “as-is” and without warranty of any kind and Partner’s use of the Expert Services is at Partner’s sole risk. The Partner is solely responsible for: (i) negotiating, agreeing to and executing any legal agreement, terms or conditions between the Partner and the applicable Expert and Xyte plays no part in agreements between the Partner and the applicable Expert; and/or (ii) paying for the Expert Services. Partner acknowledges that Xyte does not: (a) in any way, supervise, direct, control, or evaluate Experts or their work and is not responsible for any delivered work; (b) provide Experts with training or any equipment, labor, tools or materials; and (c) provide the premises at which Experts will perform the Expert Services. If the Partner is unhappy with or has a dispute with one or more Experts, to the maximum extent permitted by law, the Partner releases Xyte from any and all claims, demands and damages arising out of or in any way connected with such disputes.

2.5. Updates. As a part of Xyte’s maintenance of the Service, from time to time, Xyte may develop, implement and/or 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 Partners, Xyte will incorporate such Updates and provide Partner 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.

2.6. Service Level Agreement. Xyte will provide and operate the Service in accordance with Xyte’s Service Level Agreement (“SLA”).

2.7. Digital Products. It is hereby clarified that the Service, among others, is designed to enhance the overall functionality of Digital Products but does not extend to assuming responsibility for the operation or performance of the Digital Products themselves. Xyte expressly disclaims any liability or responsibility for the Digital Products offered by the Partner to the Partner’s Customers and their operation, description and content, and Xyte will not be liable in any manner for the quality or performance of any Digital Products offered by the Partner to the Partner’s Customers. Xyte does not provide any warranty or guarantee for such Digital Products, and any issues or concerns regarding the Digital Products should be addressed directly to the respective Partner. The Partner’s Customer is encouraged to review the Partner terms and conditions for any product-related concerns. The Partner hereby acknowledges and agrees that any contract of sale made to Digital Products is directly between the Partner and the Partner’s Customers. For the avoidance of doubt, Partner is the seller of record for Digital Products and Xyte will not be the seller or merchant of record and will have no responsibility for Digital Products sold to Partner’s Customers. The Partner is responsible for the creation and operation of the Digital Products, and all aspects of the transactions between the Partner and Partner’s Customers (including but not limited to, authorizing the charge, refunds, returns, fulfilling any sales or customer service, defects, fraudulent transactions, required legal disclosures, regulatory compliance and/or alleged or actual violation of applicable laws (including but not limited to consumer protection laws in any jurisdiction where Partner offers its Digital Products for sale)). The Partner represents and warrants that Digital Products will not violate any applicable laws, regulations or rights of third parties

2.8. Links. The Service may contain links and may enable Partner to post content to, or purchase products and services from, third party landing pages or websites that are not owned or controlled by Xyte. Xyte is not affiliated with, has no control over, and assumes no responsibility for the content, products, services, privacy policies, or practices of, any third party landing pages or websites. Partner: (i) is solely responsible and liable for its own use of and linking to third party landing pages or websites, any content that Partner may send or post to a third party website, and any products or services that Partner may purchase from such third party landing pages or websites; and (ii) expressly releases Xyte from any and all liability arising from Partner’s use of any third party landing pages or website. Accordingly, Xyte encourages Partner to read the terms and conditions and privacy policy of each third party landing pages or website that Partner may choose to visit, including with respect to any products and services it wishes to purchase.

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3. OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS

3.1. Ownership. As between the Parties, Xyte is, and shall be, the sole and exclusive owner of all right, title, and interest, including any Intellectual Property Rights evidenced by or embodied in, attached, connected and/or related to: (a) the Service and all related intellectual property; (b) any and all improvements, derivative works and/or modifications of/to the foregoing, regardless of inventorship or authorship; and (c) any other deliverables and/or services which may be provided by Xyte hereunder. The Partner shall make, and hereby irrevocably make, all assignments necessary or reasonably requested by Xyte to ensure and/or provide Xyte the ownership rights set forth in this Section.

3.2. Feedback. If Xyte receives any feedback (which may consist of questions, comments, suggestions or the like) regarding any of its products and services (including the Service) (collectively, “Feedback”), all rights, including Intellectual Property Rights in such Feedback, shall belong exclusively to Xyte and the Feedback shall be considered Xyte’s Confidential Information. Partner represents that it is free to provide the Feedback and that it shall not knowingly provide Xyte with Feedback that infringes upon third parties’ Intellectual Property Rights. Partner hereby irrevocably and unconditionally transfers and assigns to Xyte all Intellectual Property Rights it has in such Feedback and waives any and all moral rights that Partner may have in respect thereto. It is further understood that the use of the Feedback, if any, may be made by Xyte at its sole discretion and that Xyte in no way shall be obliged to make use of the Feedback.

3.3. Ownership and Use of Partner Data. Except as expressly provided in this Agreement, Partner has and will retain exclusive ownership and control over all Partner Data. Partner hereby grants Xyte, during the Term, a non-exclusive, worldwide, royalty-free, fully paid-up license to use any Partner Data solely to the extent necessary for Xyte to provide the Service.

3.4 Ownership and Use of Device Data. Except as expressly provided in this Agreement, the Partner has and will retain exclusive ownership and control over all Device Data. The Partner’s Customer shall be entitled to access such Device Data during the Term. Partner hereby grants Xyte, during the Term, a non-exclusive, worldwide, royalty-free, fully paid-up license to use any Device Data solely to the extent necessary for Xyte to provide the Service.

3.5. Analytics Information. Notwithstanding anything to the contrary under this Agreement, any anonymous information that is not personally identifiable information (i.e., metadata, aggregated and/or analytics information), which is derived from the Partner’s (and its Authorized Users) use of the Service and which is derived from Xyte’s access to any Partner Data or Device Data (“Analytics Information”) may be used by Xyte for providing and improving the Service, for marketing purposes, for development and/or for statistical purposes and for any other business purposes. Such Analytics Information is Xyte’s exclusive property.
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3.6. Limited Rights. Partner’s rights in the Service will be limited to those expressly granted in this Agreement. Except as expressly granted in this Agreement, neither Party will have any other rights of any kind in the other’s intellectual property, Intellectual Property Rights, proprietary technology, websites, products or other proprietary materials. Each Party reserves all rights not expressly granted to the other under this Agreement.

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4. PAYMENT; TAXES

4.1. License and Services Fees. In consideration for the licenses and Service provided hereunder, Partner will pay Xyte the fees as set forth in each Order Form (“Subscription Fees”). In addition to the Subscription Fees, the Partner will pay Xyte the applicable transaction fees for each sale of the Digital Products as set forth in each Order Form, irrespective of whether payment is processed by Xyte or the Partner (“Transaction Fees” and together, the Subscription Fees, the “Fees”). Unless otherwise set forth in the applicable Order Form, (i) the Partner will pay all applicable Fees within 30 days of Xyte’s invoice; (ii) all Fees are stated, and are to be paid, in U.S. Dollars; and (iii) all payments under this Agreement are non-refundable and are without any right of set-off or cancellation. Any amounts due and not paid by the Partner when due will be charged default interest at the lesser of the rate of 1.5% per month, or the maximum rate permitted by applicable law. Xyte reserves the right to increase the applicable fees from time to time at its sole discretion, with 60 days prior written notice to the Customer (which may be sent by email), provided that the fees shall not be increased by more than 6% per annum.

4.2. Taxes. The Partner is solely responsible for any applicable taxes relating to the purchase of Digital Products (including any sale taxes and/or import/export taxes). The Fees and charges under this Agreement do not include any sales, use, excise, transaction or other similar taxes levied against or upon the licensing of Service or the furnishing or receipt of Service pursuant to this Agreement. If such taxes are applicable, they will be separately stated on the invoice to the Partner, and Partner will pay them. Partner will have no obligation to pay any taxes or fees that are (a) based upon Xyte’s net or gross income or gross receipts; (b) franchise taxes or other taxes based on Xyte’s corporate existence or status; or (c) personal property taxes. If applicable law requires Partner to withhold (or deduct at source) any taxes levied on payments to be made to Xyte pursuant to this Agreement, the prices listed in the Order Form will be adjusted upwards to compensate Xyte for such withholding or deduction.

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5. REPRESENTATIONS AND WARRANTIES

5.1. Xyte Representations. Xyte represents, warrants and covenants that as of the Effective Date: (i) under normal authorized use, the Service shall substantially perform in conformance with its Documentation; and (ii) to Xyte’s knowledge, the Service does not infringe upon the Intellectual Property Rights of a third party.

5.2. Limitations of Warranty. As the Partner’s sole and exclusive remedy and Xyte’s sole liability for breach of this warranty, Xyte shall use commercially reasonable efforts to repair the Service. Without limiting any other provisions limiting liability under this Agreement, Xyte shall not be liable under any warranty provided herein in the event that the Service: (i) has been subject to misuse, abuse, negligence, accident or improper use or maintenance by anyone other than Xyte; (ii) has been modified, customized, adapted, repaired or altered by anyone other than Xyte or combined with equipment or software not authorized or provided by Xyte, without Xyte’s express prior written approval; (iii) used other than in accordance with the Documentation; or (iv) has been damaged by causes beyond the control of Xyte.

5.3. No Implied Warranties. OTHER THAN AS EXPLICITLY STATED IN THIS AGREEMENT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, XYTE’S EXPRESS WARRANTIES IN THIS AGREEMENT ARE IN LIEU OF AND TO THE EXCLUSION OF ALL OTHER WARRANTIES, CONDITIONS OR OTHER TERMS OF ANY KIND, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE RELATING TO ANYTHING SUPPLIED OR SERVICES PROVIDED UNDER OR IN CONNECTION WITH THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, ANY TERMS AS TO THE CONDITION, QUALITY, PERFORMANCE OR FITNESS FOR PURPOSE OF THE SERVICE OR UPDATES OR ANY PART THEREOF. OTHER THAN AS EXPLICITLY STATED IN THIS AGREEMENT, THE SERVICE AND ANY OUTPUT WHICH MAY BE PROVIDED BY XYTE HEREUNDER ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. XYTE MAKES NO WARRANTY THAT THE SERVICE AND THE EXPERT SERVICES WILL MEET THE PARTNER’S REQUIREMENTS AND WILL BE ERROR-FREE AND THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE AND THE EXPERT SERVICES WILL BE EFFECTIVE, ACCURATE AND/OR RELIABLE. XYTE DOES NOT MAKE ANY REPRESENTATION OR WARRANTY WITH RESPECT TO THE TRUTHFULNESS, ACCURACY, LEGALITY, COMPLETENESS, TIMELINESS OR RELIABILITY OF ANY SERVICE, EXPERT SERVICES, PARTNER DATA AND DEVICE DATA AND DISCLAIMS ALL LIABILITY FOR ANY SUCH SERVICE, EXPERTS SERVICES, PARTNER DATA AND DEVICE DATA. XYTE WILL NOT BE LIABLE FOR ANY CONTRACTUAL ENGAGEMENTS OR OTHER ENGAGEMENTS WHICH THE PARTNER MAY ENTER INTO WHILST RELYING ON DETAILS AND INFORMATION INCLUDED IN THE SERVICE, EXPERT SERVICES, PARTNER DATA AND DEVICE DATA. PARTNER HEREBY WAIVES ANY CLAIMS RELATED TO THE USE OF THE SERVICE, EXPERT SERVICES, PARTNER DATA AND DEVICE DATA AND ANY OUTCOMES THEREOF.

5.4. 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 this Agreement and perform the obligations and duties hereunder; (b) the execution of this Agreement, 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, this Agreement will constitute the legal, valid and binding obligation of each Party, enforceable against each in accordance with its terms.

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6. INDEMNIFICATION

6.1. Indemnification. Xyte agrees to defend, at its expense, any third party action or suit brought against Partner alleging that the Service, when used as permitted under this Agreement, infringes Intellectual Property Rights of a third party (“IP Infringement Claim”), and Xyte will pay any damages awarded by the court against Partner that are attributable to any such IP Infringement Claim.

6.2. Procedures and Settlements. If any IP Infringement Claim is commenced against a person or entity entitled to indemnification under this Section (“Indemnified Partner Party”), written notice thereof will be given to Xyte as promptly as practicable. Partner grants Xyte the sole authority to handle the defense or settlement of any such IP Infringement Claim and to employ and engage attorneys reasonably to handle and defend the same, at Xyte’s sole cost and expense. The Indemnified Partner Party will cooperate, at Xyte’s expense, in all respects with Xyte and its attorneys in the investigation and defense of such IP Infringement Claim and any appeal arising therefrom. If any settlement requires an affirmative obligation of, results in any ongoing liability to, or materially prejudices the rights of, the Indemnified Partner Party hereunder, then such settlement will require the Indemnified Partner Party’s prior written consent (not to be unreasonably withheld or delayed). Xyte will not be bound by any settlement that Partner enters into without Xyte’s prior written consent.

6.3. Infringement Injunctions. If Partner’s use of any of the Service is, or in Xyte’s opinion is likely to be, the subject of an IP Infringement Claim, Xyte will, at Xyte’s option and expense, and at no cost or expense to Partner, either: (a) procure for Partner the right to continue to use the Service under the terms of this Agreement; (b) replace or modify the Service, so that they are non-infringing and substantially equivalent in function to the enjoined Service; or (c) if options (a) and (b) cannot be accomplished despite Xyte’s reasonable efforts, then Xyte may terminate this Agreement upon written notice to Partner, and Partner shall be entitled to receive a pro-rated refund of any prepaid Fees under such based on the remaining period of the subscription term set forth in the applicable Order Form.

6.4. Exclusions. Xyte’s obligations set forth in this Section ‎6 shall not apply to the extent the IP Infringement Claim of infringement of Intellectual Property Rights arises as a result of: (i) modifications to the Service made by any person or entity except Xyte or anyone on its behalf where such, without such modifications, would not have infringed third party’s rights; and/or (ii) the use of the Service not in compliance with the Documentation; and/or (iii) combination, utilization or integration of the Service with Partner’s or with third parties’ equipment, network, platform, products and/or applications, where the Service, standing alone, would not have infringed third party’s rights; (iv) from the use of the Service in a manner for which it was not intended; and/or (v) Partner’s failure to implement software updates provided by Xyte specifically to avoid the infringement.

7. CONFIDENTIALITY

The Parties acknowledge and contemplate the exchange of Confidential Information during and in connection with the performance of this Agreement. The following provisions shall apply to such Confidential Information:

7.1. Non-disclosure of Confidential Information. Each Party (for the purposes of this Section ‎7, the “Receiving Party”) shall not disclose to third parties nor use for any purpose other than for the proper fulfilment of the purpose of this Agreement any Confidential Information received from the other Party (for the purposes of this Section ‎7, the “Disclosing Party”) in whatever form under or in connection with this Agreement without the prior written permission of the Disclosing Party. Each Party shall limit access to Confidential Information to those of its personnel for whom such access is reasonably necessary for the proper performance of this Agreement. Such personnel shall be bound by confidentiality obligations not less restrictive than those provided for in this Agreement and in any event, the Receiving Party shall remain responsible for the acts or omissions of its personnel to the same extent as if such acts or omissions were performed by the Receiving Party. 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.

7.2. 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; or (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; or (c) was disclosed by a third party without breach of any obligation of confidentiality; or (d) is disclosed 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. Recipient 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 this Agreement.

7.3. Equitable Relief. In recognition of the unique and proprietary nature of the information disclosed by each Party, it is agreed that each Party’s remedy at law for breach by the other Party of its obligations under this Section ‎7 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.

7.4. Binding Term. The provisions of this Section ‎7 shall bind the Parties for a period of 5 years following the termination or expiration of this Agreement.

8. LIMITATION OF LIABILITY

8.1. Indirect Damages. Except for any damages resulting from either Party’s gross negligence and/or willful misconduct and/or Partner’s misappropriation or otherwise violation of Xyte’s Intellectual Property Rights (including violation of the license restrictions under Section 2.2 by Partner), in no event will either Party be liable towards the other 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 this Agreement, even if such Party has been advised of the possibility of such damages.

8.2. Damages Cap. Except for any damages resulting from either Party’s gross negligence and/or willful misconduct and/or Partner’s misappropriation or otherwise violation of Xyte’s Intellectual Property Rights (including violation of the license restrictions under Section 2.2 by Partner), Xyte’s liability under or pursuant to this Agreement shall in no event exceed, in the aggregate the total amounts paid by Partner to Xyte in the 12 month period immediately preceding the event giving rise to such claim.

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9. TERM AND TERMINATION

9.1. Term. This Agreement will commence on the Effective Date and will remain in effect for a period of 1 year (“Initial Term”). Thereafter, this Agreement will automatically renew for 1-year terms (each a “Renewal Term” and together with the Initial Term, the “Term”), unless either Party, gives written notice of its intent to not renew this Agreement at least 30 days prior to expiration of the Initial Term or any Renewal Term, as applicable.

9.2. Termination for Cause. Either Party may terminate this Agreement 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 this Agreement and/or any Order Form which is not cured within 30 days of notice thereof; (b) the other Party ceases to carry on its business as an ongoing concern; (c) 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 calendar days after they are instituted; (d) the appointment of a receiver for all or substantially all of the other Party’s assets, if such appointment is not dismissed or discharged within 60 calendar days; or (e) a Force Majeure Event (as defined below), if such Force Majeure Event continue for a period of more than 60 days.

9.3. Effect of Termination. Upon any termination or expiration of this Agreement: (a) all licenses and rights granted hereunder will survive with respect to the use license of Xyte’s platform and Service by the end users under the then Xyte terms of use and end user license agreement; (b) Xyte shall be free to provide the Service directly to all Partner end-users; (c) Xyte will no longer provide the Service to Partner; (d) Partner will cease and cause its Authorized Users to cease using the Service, erase or otherwise destroy all copies of the Service in its possession, which are fixed or resident in the memory or hard disks of its devices and return all Documentation in its possession or control, to Xyte; and (e) 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 its possession and any other information or materials provided to it pursuant to this Agreement. Following termination, all outstanding Fees and other charges that accrued as of termination will become immediately due and payable, and if necessary, Xyte shall issue a final invoice, therefore.

9.4. Survival. The rights and obligations of the Parties contained in Sections 1 (Definitions), ‎3 (Ownership/Intellectual Property Rights), ‎6 (Indemnification) with respect to events occurring prior to termination, ‎7 (Confidentiality), ‎8 (Limitation of Liability), 9.3 (Effect of Termination), ‎9.4 (Survival), and ‎10 (General) will survive the termination of this Agreement. Additionally, any provision that expressly states that it will survive or which, by its nature, must survive the completion, expiration, termination, or cancellation of this Agreement, will survive the completion, expiration, termination, or cancellation of this Agreement.

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10. GENERAL

10.1. Assignment. Partner may not assign this Agreement, in whole or in part, without Xyte’s prior written consent, provided however, that Partner may assign its rights or obligations hereunder to an Affiliate to the foregoing, this Agreement will be fully binding upon, inure to the benefit of, and be enforceable by, the Parties hereto and their respective successors and assigns. Notwithstanding the foregoing, Partner hereby acknowledges that Xyte uses certain subcontractors for the purpose of providing the Service hereunder and may use alternate or additional subcontractors in the provision of the Service. Xyte may assign and/or transfer any or all its rights and obligations under this Agreement at its sole discretion.

10.2. Governing Law and Venue. The validity of this Agreement 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 this Agreement 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 federal, state and local statutes, laws, ordinances, regulations, rules, orders and codes in the performance of its obligations hereunder.

10.3. Severability. If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision of this Agreement will be enforced to the maximum extent permissible, and the other provisions of this Agreement will remain in full force and effect. Except where otherwise specified, the rights and remedies granted to a Party under this Agreement 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.

10.4. Waiver. The failure by either Party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision.

10.5. Notices. Any notice shall be deemed given by mail, certified, return receipt requested, personal delivery, electronic mail or by courier to the below addresses, or to such other 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 his/her/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.

If to Partner:

‍ Details as provided under the Order Form

If to Xyte:

    Xyte Technologies Ltd.
    Attn: Legal Department
    Email: legal@xyte.io

10.6. 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 (each, a “Force Majeure Event”).

10.7. 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 Partner expressly agrees to provide in an Order Form, Xyte will provide all personnel, software and other resources as may be necessary to perform the Service in accordance with this Agreement. Xyte will be solely responsible for the direction and control of Xyte’s employees, representatives and subcontractors, including decisions regarding hiring, firing, supervision, assignment and the setting of wages and working conditions. Partner 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 the Partner. None of the employer-paid benefits provided by Partner to its own employees, including but not limited to workers’ compensation insurance and unemployment insurance, are available from Partner to Xyte or to Xyte’s employees, agents, representatives or subcontractors.

10.8. Headings. The captions and headings used in this Agreement are inserted for convenience only and will not affect the meaning or interpretation of this Agreement.

10.9. Partner Reference. During the Term, Xyte may use the trademarks, service marks, trade names, service names, logos or other brand designations of Partner in any promotional material or other public announcement or disclosure to identify Partner as a partner of Xyte or user of the Service, on Xyte’s website, marketing materials, presentations or otherwise. Upon Partner’s written request Xyte will remove such reference.

10.10. Modifications. Xyte reserves the right, at its discretion, to change the terms of this Agreement at any time. Such a change will be effective 10 days following Xyte sending a notice thereof to Partner or posting the revised Agreement on Xyte’s website or platform, and Partner’s continued use of the Service thereafter means that Partner has accepted those changes.

10.11. Entire Agreement. This Agreement, including all addenda, Schedules, Exhibits, Order Forms and attachments attached hereto, and other documents referred to in this Agreement and any documents referenced herein and therein, are hereby incorporated in and made a part of this Agreement 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. In the event of any inconsistencies between this Agreement and the terms of any duly executed Order Form signed by Xyte, the terms of the Agreement shall prevail except where the Order Form specifically indicates otherwise, in which case the terms of the Order Form will prevail for that Order Form only.

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Xyte Technologies Ltd.

Last Updated: November, 2024

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