Xyte End-Customer/Integrator Terms and Conditions

The following terms and conditions (“Terms”)apply to you, whether on your own behalf as an individual or on behalf of youremployer or another legal entity (collectively, “Customer”, “you”or “your”), in connection with the software-as-a-service solution (the “Service”)provided by Xyte Technologies Inc. (“Xyte”, “us”, “we” or“our”) through our platform (the “Platform”), whether or not you register for,subscribe to, or use any services offered by us. These Terms, together with anyapplicable Order Form, constitute the agreement between Customer and Xyte (the“Agreement”). The “Effective Date” of this Agreement is the earlier ofthe date Customer first accesses or uses the Platform or the Service and theeffective date of the applicable Order Form. Customer and Xyte are each a “Party”and together, the “Parties.” Please read these Terms carefully beforeusing the Platform. If you access or use the Platform on behalf of youremployer or another legal entity, you represent that you have full authority tobind that employer or entity to these Terms. To the extent permitted byapplicable law, you waive any rights to require an original (non-electronic)signature or the delivery or retention of electronic records. If you do notagree to these Terms, please do not access or use the Platform.

1.             Definitions.

1.1.        For purposes of this Agreement, the following capitalized terms shallhave the meanings set forth below:

1.1.1.    “Content” means any information and data, including withoutlimitation, text, documents, articles, brochures, descriptions, products,services, software, graphics, photos, sounds, videos, interactive features,proposals, promotions, advertisements, marketing materials, and policies.

1.1.2.    “Marks” means trademarks, service marks, trade names, service names,trade dress, symbols, brands, and logos.

1.2.        “Xyte Content” means anyContent that Xyte may upload to or publish on the Platform in connection withthe Service, including Xyte’s Marks. Xyte Content may be protected byapplicable copyright or other intellectual property laws and treaties. Xytedoes not warrant that Xyte Content available on the Platform is accurate,complete, reliable, current, or error-free, and Xyte reserves the right to makechanges to the Xyte Content, or any part thereof, in Xyte’s sole discretion,without notice. All other Content and Marks used or appearing on the Platformare the Content and Marks of their respective owners, and Xyte is notresponsible in any manner for such Content and Marks. Your use of Xyte Contentand any other Content, or any part thereof, is made solely at your own risk andresponsibility.

1.3.        “Third Party Content” meansany Content from our partners, third parties, and other sources that ispresented on, made available through, or otherwise accessible via thePlatform and that is not owned or controlled by us. The display of such ThirdParty Content does not (and shall not be construed to) in any way imply,suggest, or constitute any sponsorship, endorsement, or approval by us of suchThird Party Content or third party, or by such third party of us. Wedo not assume any responsibility or liability for Third Party Content.

1.4.        “Digital Products” means any products or devices owned by,licensed by, or otherwise offered by a third-party supplier or partner (each, a“Partner”) and made available to Customers through the Platform or the Service.

1.5.        “Authorized User” means an active user designated by theCustomer to use the Service.

1.6.        “Affiliate” means, with respect to a Party, any entity thatdirectly or indirectly controls, is controlled by, or is under common controlwith such Party, where “control” means direct or indirect ownership or controlof more than fifty percent (50%) of the voting interests or other equivalentdecision-making authority of such entity.

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

1.8.         “Order Form” means amutually executed order form, sales order, quote, other ordering document, oronline registration form for the provision of the Service. Each Order Form formspart of and is governed by this Agreement.

1.9.        “Customer Data” means anydata relating to the Customer that is provided or made available to Xyte or anyXyte Affiliate under this Agreement or any Order Form, and includes allorganizational data generated pursuant to this Agreement by Xyte to the extentit relates to the Customer or arises from the performance of the Service.

1.10.     “Service” means the software-as-a-service solution provided byXyte under this Agreement as described in the applicable Order Form. Unless thecontext requires otherwise, references herein to the “Service” shall be deemedto include the Documentation and the Updates (as defined below).

2.             The Service.

2.1.        Grant of License. Subject tothe terms and conditions of this Agreement, Xyte hereby grants you, during theTerm (as defined below), a non-exclusive, limited, fully-paid,non-transferable, non-assignable, revocable right and license to: (a) accessand/or use the Service solely for your internal business purposes and not forredistribution, and otherwise in accordance with the terms of this Agreement;(b) perform testing and evaluation of the Service; and (c) use internally andreproduce the Documentation provided by Xyte solely to the extent necessary foryour use of the Service. You are solely responsible for providing allequipment, systems, assets, access and ancillary goods and services needed toaccess and use the Service, and for ensuring their compatibility with theService. The Customer may grant access rights to its Authorized Users subjectto the limitations set forth in the applicable Order Form, which may includegenerating login credentials for each such Authorized User. The Customer shall be liable for all activities of its AuthorizedUsers and will be fully responsible for any breach of this Agreement by anAuthorized User. Unauthorized access or use of the Service must be immediatelyreported to Xyte.

2.2.        License Restrictions. Otherthan as permitted under this Agreement, the Customer will not, and will ensurethat its Authorized Users do not: (a) use the Service in any manner or for anypurpose other than as expressly permitted by this Agreement or theDocumentation; (b) use the Service in violation of any applicable law; (c)sell, lend, rent, resell, lease, sublicense, or otherwise transfer any of therights granted hereunder to any third party, including by offering the Serviceas part of a time-sharing, outsourcing, or service bureau environment; (d)copy, modify, alter, tamper with, repair, or otherwise create derivative worksof any software included in or used to provide the Service; (e) reverseengineer, disassemble, or decompile the Service or any software containedtherein, or attempt to discover or recreate the source code of the Service or anysoftware included therein; (f) remove, obscure, or alter any proprietary rightsnotices related to the Service or any portion thereof; (g) access or use theService 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 byincorporation into its products, or use the Service to develop any service orproduct that is the same as or substantially similar to it; (i) disclose theresults of any testing or benchmarking of the Service to any third party; (j)circumvent, disable, or otherwise interfere with security-related features ofthe Service or features that enforce use limitations, or store or transmit anymalicious code (i.e., software viruses, Trojan horses, worms, robots, malware,spyware, or other computer instructions, devices, or techniques that erase dataor programming, infect, disrupt, damage, disable, or shut down a computersystem or any component thereof) or other unlawful material in connection withthe Service; (k) use any “open source” or “copyleft software” in a manner thatwould require Xyte to disclose the source code of the Service to any thirdparty; and/or (l) use the Service in a manner that violates or infringes anyrights of any third party, including, without limitation, privacy rights,publicity rights, or Intellectual Property Rights.

2.3.        Suspension. Xyte reserves theright to temporarily suspend the provision of the Service: (a) if the Customer is seven (7) days or more overdue on anypayment; (b) if Xyte deems such suspension necessary as a result of Customer'sbreach under Section 2.2 (License Restrictions); or (c) as required by law orat the request of governmental entities.

2.4.        Xyte may make available to the Customer accessto its established global network of professionals, known as “Xyte Xperts” (the“Network”), who possess the capabilities and skills to support the operation ofXyte’s products and services (each, an “Expert”). Xyte may facilitateintroductions between the Customer and an Expertfor the provision of certain services in connection with Xyte’s products, suchas integration services, software and business development, technical support,or other related services (“Expert Services”). Xyte does not assume anyliability or responsibility for the Expert Services or any work or action of anyExpert. To Xyte’s knowledge, an Expert may have the relevant skills to providethe Expert Services, but Customer may elect to use any Expert Services in itssole discretion. Notwithstanding the foregoing, Xyte does not verify Expertsand does not endorse or guarantee the quality, reliability, suitability, orlegality of any Expert Services. Xyte shall not be liable for any inaccuracies,errors, omissions, or damages arising from Customer’s reliance on ExpertServices. The Network is provided by Xyte “as is” and without warranty of anykind, and Customer’s use of the Expert Services is at Customer’s sole risk. Customeris solely responsible for: (i) negotiating, agreeing to, and executing anylegal agreement, terms, or conditions with the applicable Expert, and Xyteplays no part in agreements between Customer and any Expert; and/or (ii) payingfor the Expert Services. Customer acknowledges that Xyte does not: (a) in anyway supervise, direct, control, or evaluate Experts or their work and is notresponsible for any delivered work; (b) provide Experts with training or anyequipment, labor, tools, or materials; and (c) provide the premises at whichExperts will perform the Expert Services. If Customer is unhappy with or has adispute with one or more Experts, then, to the maximum extent permitted by law,Customer releases Xyte from any and all claims, demands, and damages arisingout of or in any way connected with such disputes.

2.5.        Updates. As part of Xyte’smaintenance of the Service, Xyte may, from time to time, develop, implement,and/or maintain updates, enhancements, improvements, fixes, or solutions toproblems or bugs in the Service (which, for the avoidance of doubt, do notinclude new features or functionality) (“Updates”). To the extent madegenerally available by Xyte to its customers,Xyte will incorporate such Updates and provide Customer with any necessary Documentation related to suchUpdates. Any Updates provided by Xyte will not materially degrade thecapabilities or features of the Service, unless otherwise agreed by theParties.

2.6.        Service Level Agreement. Xytewill provide and operate the Service in accordance with the then-currentservice level agreement applicable to the Service, as may be updated by Xytefrom time to time (the “SLA”), which is incorporated herein by reference.

2.7.        Digital Products. It ishereby clarified that the Service, among other things, is designed to enhancethe overall functionality of Digital Products managed through the Platform, butdoes not extend to assuming responsibility for the operation or performance ofthe Digital Products themselves. Xyte expressly disclaims any liability orresponsibility for any Digital Products offered by a Partner, including theiroperation, description, content, quality, or performance. Xyte does not provideany warranty or guarantee for such Digital Products, and any issues or concernsregarding such Digital Products should be addressed directly to the applicablePartner. Customer is encouraged to review the applicable Partner Terms for anyproduct-related concerns. Customer acknowledges and agrees that any contract ofsale made with respect to Digital Products is directly between Customer and theapplicable Partner. For the avoidance of doubt, the applicable Partner, and notXyte, is the seller of record for Digital Products, and Xyte is not the selleror merchant of record and shall have no responsibility for Digital Productssold to Customer. Each Partner is solely responsible for the creation andoperation of its Digital Products and all aspects of its transactions withCustomer, including authorizing charges, refunds, returns, fulfillment,customer service, defects, fraudulent transactions, required legal disclosures,regulatory compliance, and any alleged or actual violation of applicable laws, includingconsumer protection laws. For the avoidance of doubt, Xyte also disclaims anyliability or responsibility for any third-party APIs used by, integrated with,or connected to the Digital Products or the Service.  

3.             Links.

The Platform and Service may contain links tothird-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 responsibilityfor the content, products, services, or practices of any third-party landingpages or websites. The Customer is solely responsible and liable for its ownuse of the Platform and Service, for linking to third-party landing pages orwebsites, for any Content that the Customer may send or post to a third-partywebsite, and for any products or services that the Customer may purchase fromsuch third-party landing pages or websites. Furthermore, the Customer expresslyreleases Xyte from any and all liability arising from its use of the Platformand Service and any third-party landing pages or websites. Accordingly, Xyteencourages the Customer to read the terms and conditions and privacy policiesof the Platform and Service and each third-party landing page or website that theCustomer may choose to visit before engaging in any such activity, includingwith respect to any products and services it wishes to purchase.

4.             Privacy.

Ourprivacy policy is available at https://www.xyte.io/privacy-policyTo the extentCustomer requires a data processing addendum in connection with its use of theService or as required under applicable data protection laws, Customer maycontact Xyte at support@xyte.io. to requestXyte’s standard data processing addendum (“DPA”), which shall be provided forexecution.

5.             Applicability of Terms.

5.1.        PartnerTerms for Digital Products. If you purchase Digital Products from a Partnerthrough the Platform, the applicable Partner Terms will apply to such purchase.Xyte is not a party to, and shall have no responsibility or liability arisingfrom, any agreement, interaction, communication, engagement, and/or transactionbetween you and the applicable Partner, including the applicable Partner Terms.

5.2.        Order of Precedence. In the event of any conflict, inconsistency, ordiscrepancy between these Terms and the Partner Terms, these Terms shall prevailwith respect to the Platform, the Service, and Customer’s access to and usethereof, and the Partner Terms shall prevail with respect to the applicableproducts offered by the Partner, including their sale, purchase, delivery,functionality, specifications, warranties, returns, refunds, and compliancewith applicable product or consumer laws. Any preprinted terms in anyquotation, acknowledgment, invoice, click-wrap license, shrink-wrap license, orsimilar document that conflict with these Terms shall be deemed superseded bythese Terms; provided, however, that nothing in the foregoing shall limit theapplicability or precedence of the Partner Terms with respect to the applicableproducts offered by the Partner as set forth above.

6.             Intellectual Property and Ownership.

6.1.        Xyte and/or its licensors are, and shall remain, the sole and exclusiveowners of all right, title, and interest in and to the Service, the XyteContent, and any and all related technology, materials, documentation,deliverables and services provided by or on behalf of Xyte hereunder, includingall Intellectual Property Rights therein and thereto. Without limiting theforegoing, all inventions (whether patentable or not), patents, copyrights(including moral rights), trademarks, trade names, service marks, proprietaryinformation, know-how, trade secrets, and any other similar or related rightsembodied in, evidenced by, attached to, connected with, or otherwise related tothe Service, the Xyte Content, and any deliverables or services providedhereunder, including any and all improvements, enhancements, updates, upgrades,modifications, adaptations, derivative works and/or customizations thereof,regardless of inventorship or authorship, are and shall remain the exclusiveproperty of Xyte and/or its licensors. No license, right, or interest in or toany Intellectual Property Rights is granted, assigned, or transferred to youunder this Agreement, whether expressly, impliedly, by estoppel, or otherwise,except for the limited rights expressly set forth in this Agreement. You herebyirrevocably assign to Xyte any right, title, and interest you may acquire in orto any of the foregoing, and shall execute and deliver any documents and takeany actions reasonably requested by Xyte to effect, perfect, or confirm Xyte’sand/or its licensors’ ownership rights under this Section.

6.2.        Feedback. If Xyte receivesany feedback (which may consist of questions, comments, suggestions, or thelike) regarding any of its products and services (including the Service)(collectively, “Feedback”), all rights, including Intellectual Property Rightsin such Feedback, shall belong exclusively to Xyte and the Feedback shall beconsidered Xyte’s Confidential Information. You represent that you are free toprovide the Feedback and that you shall not knowingly provide Xyte withFeedback that infringes upon third parties’ Intellectual Property Rights. Youhereby irrevocably and unconditionally transfer and assign to Xyte allIntellectual Property Rights you have in such Feedback and waive any and allmoral rights you may have in respect thereto. It is further understood that theuse of the Feedback, if any, may be made by Xyte at its sole discretion andthat Xyte in no way shall be obliged to make use of the Feedback.

6.3.        Use of Customer Data. Except as expressly provided in this Agreement, the Customershall retain exclusive ownership and control over all Customer Data, asapplicable. The Customer hereby grants Xyte, during the Term, a non-exclusive,worldwide, royalty-free, fully paid-up license to use such data solely to theextent necessary to provide operate, maintain, improve, support and secure theService. The Customer acknowledges and agrees that, as an inherent feature ofthe Service, certain data and information regarding its identity, managedcustomers, device data, Digital Products in its possession, and similarinformation may be made available to, and automatically shared with, relevantthird parties in connection with the provision and operation of the Service,including, without limitation, its name, device information, serial numbers,device status, telemetry, support information, and details of the devices or DigitalProducts in its possession. Accordingly, where a device or Digital Product isconnected to, registered with, claimed through, or supported through theService, Customer hereby agrees and acknowledges that Xyte may make availableto the relevant Partner Digital Products-related information as  reasonably necessary to enable devicevisibility, authentication, activation, registration, maintenance, support,repair, warranty, security, and other related aspects. For the avoidance of doubt,[Meitar1]  any relevant Partner does not receive acopy of all Customer Data available in the Service, rather only telemetric,aggregated and device-level data of the Digital Products to provide services toyou in connection with your use of the Digital Products.

6.4.        Analytics Information.Notwithstanding anything to the contrary under this Agreement, any aggregated,de-identified or statistical information that is not personally identifiableinformation derived from the Customer’s (andits Authorized Users’) use of the Service or from Xyte’saccess to any Customer Data or Digital Products (“Analytics Information”) maybe used by Xyte for providing and improving the Service, for benchmark purposes,for development and/or statistical purposes, and for any other businesspurposes. Such Analytics Information is Xyte’s exclusive property.

6.5.        Limited Rights. Your rights in the Service are limited to those expresslygranted in this Agreement. Except as expressly granted in this Agreement,neither Party has any other rights of any kind in the other Party’sintellectual property, Intellectual Property Rights, proprietary technology,websites, products, or other proprietary materials.  Each Party reserves all rights not expresslygranted to the other under this Agreement.

7.             Payment; Taxes.

7.1.         License and Service Fees.In consideration for the licenses and Service provided hereunder, the Customerwill pay Xyte the fees set forth in each Order Form (“Subscription Fees”).Unless otherwise set forth in the applicable Order Form, (i) the Customer willpay all applicable Subscription Fees within 30 days of Xyte’s invoice; (ii) allSubscription 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 rightof set-off or cancellation. Any amounts due and not paid by the Customer whendue will bear interest at the lesser of 1.5% per month or the maximum ratepermitted by applicable law. Xyte reserves the right to increase the applicableSubscription Fees from time to time at its sole discretion, with 60 days’ priorwritten notice to the Customer (which may be sent by email), provided that the SubscriptionFees shall not be increased by more than 6% per annum.

8.             Third-Party APIs.

TheService may interoperate with, integrate, or rely on application programminginterfaces (“APIs”) provided by third parties, and such third parties may alsoutilize Xyte’s APIs to develop, enhance, or modify their own products orservices. Xyte does not control and shall not be responsible or liable for anythird-party APIs, or for any errors, changes, modifications, interruptions ormalfunctions of such APIs, or for any resulting impacts on the functionality,performance, or availability of the Service. Changes made by third parties totheir APIs may affect the interoperability or performance of the Service, andXyte shall have no obligation to modify the Service to accommodate suchchanges.

9.             Warranty Disclaimers.

9.1.        Xyte Representations. Xyterepresents, warrants and covenants that as of the Effective Date: (i) undernormal authorized use, the Service shall substantially perform in conformancewith its Documentation; and (ii) to Xyte’s knowledge, the Service does notinfringe upon the Intellectual Property Rights of a third party.  

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

9.3.        No Implied Warranties. EXCEPTAS EXPLICITLY STATED IN THIS AGREEMENT, AND TO THE MAXIMUM EXTENT PERMITTED BYAPPLICABLE LAW, XYTE’S EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT ARE INLIEU OF, AND XYTE EXPRESSLY DISCLAIMS, ALL OTHER WARRANTIES, CONDITIONS, ANDTERMS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, RELATINGTO THE SERVICE, THE PLATFORM, XYTE CONTENT, ANY UPDATES, EXPERT SERVICES,THIRD-PARTY CONTENT, THIRD-PARTY PRODUCTS OR SERVICES, AND ANYTHING ELSESUPPLIED OR PROVIDED UNDER OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING ANYIMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE,NON-INFRINGEMENT, AND ANY WARRANTIES ARISING BY STATUTE, COURSE OF DEALING, ORUSAGE OF TRADE. EXCEPT AS EXPLICITLY STATED IN THIS AGREEMENT, THE FOREGOINGARE PROVIDED ON AN "AS IS" AND, WHERE APPLICABLE, "ASAVAILABLE" BASIS. XYTE DOES NOT WARRANT THAT THE SERVICE, ANY EXPERTSERVICES, OR ANY INFORMATION OR RESULTS MADE AVAILABLE THROUGH THE SERVICE WILLMEET CUSTOMER’S REQUIREMENTS OR BE ERROR-FREE, UNINTERRUPTED, SECURE, ACCURATE,COMPLETE, TIMELY, LAWFUL, OR RELIABLE. XYTE DOES NOT WARRANT, ENDORSE, ORGUARANTEE ANY THIRD-PARTY CONTENT OR ANY PRODUCT OR SERVICE FEATURED,ADVERTISED, OFFERED, OR MADE AVAILABLE BY ANY THIRD PARTY, AND ANY RELIANCE ON,USE OF, OR INTERACTION WITH ANY THIRD PARTY, THIRD-PARTY CONTENT, ORTHIRD-PARTY PRODUCT OR SERVICE SHALL BE AT CUSTOMER’S SOLE RISK. XYTE SHALL NOTBE RESPONSIBLE FOR ANY CONSEQUENCES TO CUSTOMER OR ANY THIRD PARTY ARISING FROMTHE PLATFORM, THE SERVICE, OR ANY RELIANCE ON INFORMATION OR MATERIALS MADEAVAILABLE THROUGH THEM, INCLUDING EXPERT SERVICES, CUSTOMER DATA, DEVICE DATA,THIRD-PARTY CONTENT. TO THE MAXIMUM EXTENT PERMITTED BY LAW, CUSTOMER HEREBYWAIVES ANY CLAIMS RELATED TO ITS USE OF ANY OF THE FOREGOING AND ANY CONSEQUENCESRESULTING THEREFROM.

CUSTOMERACKNOWLEDGES AND AGREES THAT IT IS SOLELY RESPONSIBLE FOR ALL ACTIVITIESCONDUCTED THROUGH ITS ACCOUNT, INCLUDING THE MANAGEMENT OF ACCOUNT SETTINGS,PERMISSIONS GRANTED TO THIRD PARTIES, AND ANY DISCLOSURES OR PUBLICATIONS OFINFORMATION RELATING TO ITSELF. XYTE SHALL HAVE NO RESPONSIBILITY OR LIABILITYWHATSOEVER FOR THE MANNER IN WHICH CUSTOMER MANAGES ITS ACCOUNT, THEPERMISSIONS GRANTED UNDER ITS ACCOUNT, OR ANY ACTIONS TAKEN BY CUSTOMER INRELATION TO SUCH MATTERS. TO THE EXTENT CUSTOMER PROVIDES ACCESS TO INFORMATIONRELATING TO ITSELF OR, IN THE CASE OF CUSTOMER’S CUSTOMERS, INCLUDING DEVICEDATA, SHARES SUCH DATA WITH THIRD PARTIES, OR PUBLISHES NAMES OR OTHERINFORMATION RELATING THERETO, CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR ENSURINGTHAT IT HAS OBTAINED ALL NECESSARY CONSENTS, PERMISSIONS, AND AUTHORIZATIONS TOSHARE OR PUBLISH SUCH DATA, AND XYTE SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANYCLAIMS, DAMAGES, OR LOSSES ARISING FROM OR RELATED TO ANY SUCH SHARING,PUBLICATION, OR FAILURE TO OBTAIN APPROPRIATE CONSENTS, PERMISSIONS, ORAUTHORIZATIONS.  

9.4.        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 thisAgreement and perform the obligations and duties hereunder; (b) the executionof 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 itis otherwise bound; and (c) when executed and delivered, this Agreement willconstitute the legal, valid and binding obligation of each Party, enforceableagainst each in accordance with its terms.

10.           Indemnification.

10.1.      Indemnification. Xyte agrees to defend, at its expense, anythird party action or suit brought against Customer alleging that the Service,when used as permitted under this Agreement, infringes the IntellectualProperty Rights of a third party (an "IP Infringement Claim"),and Xyte will pay any damages finally awarded by a court against Customer tothe extent attributable to such IP Infringement Claim.

10.2.      Procedures and Settlements. If any IP Infringement Claim is commenced against aperson or entity entitled to indemnification under this Section (an"Indemnified Party"), written notice thereof shall be given to Xyteas promptly as practicable. The Indemnified Party shall grant Xyte the soleauthority to control the defense and settlement of such IP Infringement Claimand to appoint counsel reasonably acceptable to the Indemnified Party, atXyte’s sole cost and expense. The Indemnified Party shall cooperate with Xyteand its attorneys, at Xyte’s expense, in the investigation, defense, andsettlement of such IP Infringement Claim and any appeal arising therefrom. Ifany settlement requires an affirmative obligation of, results in any ongoingliability to, or materially prejudices the rights of, the Indemnified Party,then such settlement shall require the Indemnified Party’s prior writtenconsent, not to be unreasonably withheld, conditioned, or delayed. Xyte shallnot be bound by any settlement entered into by the Indemnified Party withoutXyte’s prior written consent.

10.3.      Infringement Injunctions. If Customer’s use of any part of the Service is,or in Xyte’s opinion is likely to be, the subject of an IP Infringement Claim,Xyte may, at its option and expense, and at no cost to Customer, as applicable:(a) procure for Customer the right to continue using the Service in accordancewith this Agreement; (b) replace or modify the affected Service so that itbecomes non-infringing while remaining substantially equivalent in function; or(c) if clauses (a) and (b) cannot be accomplished despite Xyte’s reasonableefforts, terminate this Agreement or the applicable affected Service uponwritten notice, in which case Customer shall be entitled to a prorated refundof any prepaid Subscription Fees attributable to the terminated portion of theService for the remaining subscription term set forth in the applicable OrderForm.

10.4.      Exclusions. Xyte’s obligations under this Section 10 shall notapply to the extent any IP Infringement Claim arises out of or results from:(i) any modification to the Service made by any person or entity other thanXyte or its authorized representatives, where the claim would not have arisenbut for such modification; (ii) use of the Service other than in accordancewith this Agreement or the Documentation; (iii) the combination, integration oruse of the Service with Customer’s, or any third party’s equipment, network,platform, products, software or applications, where the Service alone would notinfringe; (iv) use of the Service in a manner for which it was not intended; or(v) Customer’s failure to implement updates provided by Xyte specifically toavoid the alleged infringement.

11.          Limitation of Liability.

TO THE MAXIMUM EXTENTPERMITTED BY APPLICABLE LAW, AND EXCEPT FOR DAMAGES RESULTING FROM EITHERPARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, AND/OR CUSTOMER’SMISAPPROPRIATION OF, OR OTHER VIOLATION OF, XYTE’S INTELLECTUAL PROPERTY RIGHTS(INCLUDING ANY VIOLATION OF THE LICENSE RESTRICTIONS UNDER THIS AGREEMENT), INNO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER UNDER ANY LEGAL OR EQUITABLETHEORY, INCLUDING CONTRACT, TORT, OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL,CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDINGANY LOSS OF REVENUE, REPUTATION, PROFITS, GOODWILL, DATA, DATA USE, OR COSTS OFPROCURING SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF OR RELATING TO THISAGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SUBJECT TO THEFOREGOING, XYTE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THISAGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL NOT EXCEED THE TOTALAMOUNTS PAID BY CUSTOMER TO XYTE UNDER THIS AGREEMENT DURING THE TWELVE (12)MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM; PROVIDED,HOWEVER, THAT IF NO SUCH AMOUNTS WERE PAID DURING SUCH PERIOD, XYTE’S AGGREGATELIABILITY SHALL NOT EXCEED US$100.

12.          Confidentiality.

The Parties acknowledge that, during and in connectionwith the performance of this Agreement, each of Customer and Xyte may discloseor make available Confidential Information to one another. The followingprovisions shall apply to all such Confidential Information.

12.1.      Non-Disclosure and UseRestrictions. Each Partyreceiving Confidential Information from another Party (the "ReceivingParty") shall not disclose such Confidential Information to any thirdparty or use such Confidential Information for any purpose other than asnecessary for the proper performance of this Agreement, without the priorwritten consent of the Party disclosing such Confidential Information (the"Disclosing Party"). Each Receiving Party shall limit access toConfidential Information to those of its employees, contractors, advisors andrepresentatives who have a need to know such information for the purposes ofthis Agreement and who are bound by confidentiality obligations no lessrestrictive than those set forth herein. Each Receiving Party shall remainresponsible for any acts or omissions of such persons in breach of thisSection. The Receiving Party shall protect the Confidential Information usingat least the same degree of care it uses to protect its own confidential orproprietary information of a similar nature, and in no event less than areasonable degree of care.

12.2.      Exclusions. Confidential Information shall not includeinformation that the Receiving Party can demonstrate: (a) was lawfully in itspossession prior to disclosure by the Disclosing Party, provided that theReceiving Party promptly notified the Disclosing Party of such prior possessionfollowing disclosure; (b) was publicly available at the time of disclosure orlater becomes publicly available through no breach of this Agreement by the ReceivingParty; (c) was lawfully received from a third party without breach of anyconfidentiality obligation; or (d) is required to be disclosed pursuant toapplicable law, regulation, administrative process or judicial order, providedthat, to the extent legally permitted, the Receiving Party shall promptlynotify the Disclosing Party, reasonably cooperate with the Disclosing Party inseeking confidential treatment or other appropriate relief, use reasonableefforts to limit the disclosure to the minimum portion of the ConfidentialInformation legally required to be disclosed, and seek to preserve theconfidentiality of such Confidential Information. The Receiving Party shallbear the burden of proving the applicability of any of the foregoingexclusions. If only a portion of the Confidential Information falls within anysuch exclusion, then only that portion shall be excluded from the restrictionsset forth in this Section.

12.3.      Equitable Relief. Each Party acknowledges that a breach orthreatened breach of this Section may cause irreparable harm for which monetarydamages may be an inadequate remedy. Accordingly, in the event of any suchbreach or threatened breach, the Disclosing Party shall be entitled to seekequitable relief, including injunctive relief and specific performance, inaddition to any other rights or remedies available at law or under thisAgreement.

12.4.      Survival. The obligations under this Section shall remainin effect during the Term and for a period of five (5) years following thetermination or expiration of this Agreement.

13.          Governing Law.

ThisAgreement shall be governed by, and construed in accordance with, the laws ofthe State of New York, without regard to its conflict of laws rules orprinciples. The state and federal courts located in New York, New York shallhave exclusive jurisdiction with respect to any dispute or action arising outof or relating to this Agreement.

14.          Term and Termination.

14.1.      Term. This Agreement shall commence on the Effective Dateand shall remain in effect for an initial period of one (1) year (the"Initial Term"). Thereafter, this Agreement shall automatically renewfor successive one (1) year periods (each, a "Renewal Term", andtogether with the Initial Term, the "Term"), unless either Partygives the other Party written notice of its intent not to renew at least thirty(30) days prior to the expiration of the then-current Initial Term or RenewalTerm, as applicable.

14.2.      Termination for Cause. Either Party may terminate this Agreement and/or anyOrder Form then in effect upon written notice to the other Party upon theoccurrence of any of the following: (a) a material breach by the other Party ofthis Agreement and/or any Order Form that remains uncured for thirty (30) daysfollowing written notice thereof; (b) the other Party ceases to carry on itsbusiness as a going concern; (c) bankruptcy, receivership, insolvency,reorganization, or similar proceedings are instituted by or against the otherParty, and such proceedings are not dismissed or discharged within sixty (60)calendar days after commencement; (d) a receiver is appointed for all orsubstantially all of the other Party’s assets, and such appointment is notdismissed or discharged within sixty (60) calendar days; or (e) a Force MajeureEvent continues for more than sixty (60) days.

14.3.      Effect of Termination. Upon any termination or expiration of thisAgreement: (a) all licenses and rights granted hereunder shall immediatelyterminate; (b) Xyte shall have no further obligation to provide the Service toCustomer, except as otherwise expressly set forth in this Agreement; (c)Customer shall cease, and shall cause its Authorized Users to cease, all use ofthe Service, and shall erase, destroy, or remove all copies of the Service in itspossession or control, including copies fixed or resident in the memory or harddisks of its devices, and shall return to Xyte all Documentation in itspossession or control; (d) each Party shall cease using and shall promptlyreturn to the other Party, or destroy, at such other Party’s option, allConfidential Information and other materials provided under this Agreement thatare in its possession or control and, upon request, certify such destruction inwriting; and (e) all outstanding Subscription Fees and other accrued chargesowed by Customer through the effective date oftermination shall become immediately due and payable, and Xyte may issue afinal invoice therefor.

14.4.      Survival. The rights and obligations of the Parties underSections 1 (Definitions), 6 (Intellectual Property and Ownership), 10 (Indemnification)with respect to events occurring prior to termination, 11 (Limitation ofLiability), 12 (Confidentiality), 14.3 (Effect of Termination), 14.4(Survival), and 16 (Miscellaneous), and any other provision that expresslystates that it survives or which by its nature should survive completion,expiration, termination or cancellation of this Agreement, shall survive anycompletion, expiration, termination or cancellation of this Agreement.

15.          Miscellaneous.

15.1.     Assignment. The Customer may notassign this Agreement, in whole or in part, without Xyte’s prior writtenconsent; provided, however, that Customer may assign this Agreement to anAffiliate upon prior written notice to Xyte, so long as such assignee agrees inwriting to be bound by this Agreement. Any assignment in violation of thisSection shall be null and void. Subject to the foregoing, this Agreement shallbe binding upon and inure to the benefit of the Parties and their respectivepermitted successors and assigns. Customer acknowledges that Xyte may usesubcontractors in connection with the provision of the Service and may engagealternate or additional subcontractors at its discretion. Xyte may assignand/or transfer any or all of its rights and obligations under this Agreementat its sole discretion.

15.2.     Severability. If anyprovision of this Agreement is held by a court of competent jurisdiction to beinvalid or unenforceable, such provision shall be enforced to the maximumextent permitted by law, and the remaining provisions of this Agreement shallremain in full force and effect. Except as otherwise expressly provided herein,the rights and remedies of each Party under this Agreement are cumulative andare in addition to, and not in lieu of, any other rights or remedies availableat law or in equity.

15.3.     Waiver. The failure of anyParty to enforce any provision of this Agreement shall not constitute a waiverof that provision or of any other provision, nor shall any waiver be deemed acontinuing waiver unless expressly stated in writing.

15.4.     Notices. Any notice under this Agreement shall be deemed dulygiven if delivered by certified mail, return receipt requested, personaldelivery, courier, or electronic mail to the applicable address set forthbelow, or to such other address as a Party may designate by notice to the otherParty. Notice by mail shall be deemed delivered five (5) days after mailing.Notice by personal delivery shall be deemed delivered upon delivery to thereceiving Party or its office. Notice by courier shall be deemed delivered uponconfirmed delivery by the courier. Notice by electronic mail shall be deemeddelivered upon transmission, provided that no delivery failure notice isreceived.

If to Customer:

Details as set forth inthe applicable Order Form.

If to Xyte:

Xyte Technologies Inc.

Attn: Legal Department

Email: legal@xyte.io.

15.5.     Force Majeure. No Party shallbe liable for any delay or failure to perform its obligations under thisAgreement to the extent such delay or failure results from acts of God,disease, pandemic, fire, terrorist acts, natural disasters, war, governmentalacts or orders, political sanctions, labor disputes, or other events beyondsuch Party’s reasonable control that could not reasonably have been preventedor mitigated (each, a "Force Majeure Event").

15.6.     Relationship of the Parties.Xyte is an independent contractor, and nothing in this Agreement shall beconstrued to create a partnership, joint venture, agency, fiduciary, oremployment relationship between Xyte, on the one hand, and Customer, on theother hand. No Party shall have the authority to assume or create anyobligation or responsibility, express or implied, on behalf of the other Party,or to bind the other Party in any manner whatsoever, without such other Party’sprior written consent. Without limiting the foregoing, the Customer shall not,under any circumstances, make or undertake any warranties, representations,commitments, or obligations on behalf of Xyte. Xyte shall use its own tools,systems, and instruments in providing the Service. Except for those resources,if any, that Customer expressly agrees in an Order Form to provide, Xyte shallprovide all personnel, software, and other resources necessary to perform theService in accordance with this Agreement. Xyte shall be solely responsible forthe direction and control of its employees, representatives, andsubcontractors, including all decisions relating to hiring, firing,supervision, assignment, wages, and working conditions. Customer shall not haveor exercise any disciplinary control or authority over Xyte or any of Xyte’semployees, representatives, or subcontractors. No employee, agent,representative, or subcontractor of Xyte shall be deemed to be an employee,agent, representative, or subcontractor of Customer. None of theemployer-provided benefits made available by Customer to its employees shall beavailable to Xyte or to Xyte’s employees, agents, representatives, orsubcontractors.

15.7.     Customer Reference. During the Term, Xyte may use the trademarks,service marks, trade names, service names, logos or other brand designations ofCustomer in promotional materials or public announcements or disclosures toidentify Customer as a customer or user of the Service, including on Xyte’swebsite, marketing materials, presentations or otherwise. Upon the writtenrequest of Customer, Xyte shall remove such reference.

15.8.     Modifications. Xyte reservesthe right, in its discretion, to modify this Agreement at any time. Any suchmodification shall become effective ten (10) days after Xyte provides noticethereof to Customer or posts the revised Agreement on Xyte’s website or thePlatform, and Customer’s continued use of the Service thereafter shallconstitute acceptance of such modification.

15.9.     Entire Agreement. ThisAgreement, together with all addenda, schedules, exhibits, Order Forms,attachments, and any documents incorporated herein by reference, constitutesthe entire agreement between Customer and Xyte with respect to the subjectmatter hereof and supersedes all prior and contemporaneous agreements,understandings, negotiations, and communications, whether oral or written,relating thereto. In the event of any inconsistency between this Agreement andany duly executed Order Form between Customer and Xyte, this Agreement shallprevail unless the applicable Order Form expressly states otherwise, in whichcase the terms of such Order Form shall control solely with respect to thatOrder Form.

***

LastUpdated: September 2026

‍