HYTE Technologies, Inc. - License Agreement
Last Updated: April 16, 2018
IMPORTANT – THIS IS A LEGAL AGREEMENT BETWEEN YOU ACTING
INDIVIDUALLY AND ON BEHALF OF YOUR COMPANY AND HYTE TECHNOLOGIES, INC, A
DELAWARE CORPORATION. BY CLICKING “I ACCEPT” AT THE END OF THIS AGREEMENT OR BY
INSTALLING, ACCESSING, OR USING ANY PART OF THIS SOFTWARE OR ANY RELATED
SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND
IT AND ITS TERMS AND CONDITIONS, AND THAT YOU AND YOUR COMPANY ARE BOUND
LEGALLY BY IT AND ITS TERMS AND CONDITIONS.
IF YOU DO NOT AGREE WITH
THIS AGREEMENT OR DO NOT HAVE THE AUTHORITY TO BIND YOUR COMPANY, YOU ARE NOT
GRANTED PERMISSION TO INSTALL, ACCESS, OR OTHERWISE USE THIS SOFTWARE OR ACCESS
ANY RELATED SERVICE. IN SUCH CASE, PLEASE CLICK “I REJECT” AND PROMPTLY RETURN
AND/OR DELETE ANY MATERIALS RELATED TO THIS SOFTWARE THAT YOU HAVE RECEIVED OR
THAT ARE IN YOUR POSSESSION.
THIS LICENSE AGREEMENT
(this “Agreement”) is by and between HYTE Technologies, Inc., a Delaware
corporation (“HYTE”), having a principal place of business at 3824 Cedar
Springs Road, Suite 430, Dallas, TX 75219, and you and your company
(collectively, “Licensee”). HYTE and Licensee are each a “Party” and are, collectively,
the “Parties”. The effective date (“Effective Date”) of this Agreement shall be
the earlier of the date on which Licensee clicks on “I Accept” at the end of
this Agreement or installs, accesses, or uses any part of this software or any
related service.
A. HYTE is engaged in
the business of, among other activities, providing business clients with technology
and software services and other related services for integrated information
technology solutions; and
B. The Parties desire to
set forth the terms and conditions whereby HYTE will provide Licensee with
software licenses, software support, and related documentation and materials.
NOW, THEREFORE, on and
subject to the terms and conditions hereinafter set forth, the Parties agree as
follows:
SECTION 1. DEFINITIONS.
Capitalized terms used
but not otherwise defined in this Agreement have the following meanings:
1.1 “Documentation”
means the standard user and reference manuals for the Licensed Software
provided by HYTE.
1.2 “License Period”
means the license period for the Licensed Software that is coterminous with the
period for the paid Support Services.
1.3 “Licensed Products”
means the Licensed Software and Documentation licensed by Licensee.
1.4 “Licensed Software”
means the unmodified, object-code version of the software products provided by
HYTE, which includes any Updates and Upgrades which HYTE may provide Licensee
from time to time under this Agreement.
1.5 “Licensed Software
Warranty Period” means the period of time beginning on the Effective Date of
this Agreement and ending 90 days thereafter.
1.6 “Support Services”
means Updates and Upgrades to the Licensed Software.
1.7 “Updates” means new
versions of the Licensed Software that contain bug fixes, error corrections and
minor enhancements, but do not contain major enhancements or significant new
functionality, as determined by HYTE in its reasonable discretion.
1.8 “Upgrades” means new
releases of the Licensed Software that contain major enhancements or
significant new functionality, as determined by HYTE in its reasonable
discretion.
SECTION 2. SOFTWARE
LICENSE.
2.1 License Grant.
In consideration of payment of the Support Services fees set forth by HYTE in
the applicable order documentation (the “Support Services Fees”) and subject to
the terms and conditions of this Agreement, HYTE grants to Licensee a
non-exclusive, non-transferable, non-assignable right to use the Licensed
Software and the Documentation for the License Period, solely to serve
Licensee’s internal business needs and for no other purpose.
2.1.1 Protection of
Products. Licensee agrees to take all reasonable steps to protect the
Licensed Products from unauthorized copying, possession, access or use. Upon
Licensee’s becoming aware of any such unauthorized copying, possession, access
or use, Licensee shall promptly notify HYTE in writing and provide HYTE with
complete details of such unauthorized copying, possession, access or use,
assist HYTE in preventing the recurrence thereof, and cooperate with HYTE in
any litigation or proceedings reasonably necessary to protect the rights of
HYTE.
2.1.2 Copies and
Adaptations. Licensee may make two copies of the Licensed Software only for
archival and internal testing purposes. Licensee may make a reasonable number
of copies of the Documentation solely for its own internal business purposes to
support Licensee’s use of the Licensed Software. All titles, trademark,
copyright and other proprietary rights and restriction notices must be
reproduced and included on all such copies. No other rights or uses are granted
hereunder.
2.2 Ownership.
THE LICENSED SOFTWARE IS LICENSED AND NOT SOLD. HYTE and its licensors retain
sole ownership of, and title to, the Licensed Products (including without
limitation any corrections, updates, adaptations, enhancements, modifications,
derivative works and copies) and Support Services and all copyrights, trade
secrets, patents, trademarks, derivative works and any other intellectual and
industrial property and proprietary rights related thereto. Licensee does not
acquire any rights, express or implied, other than those specified in this
Agreement. Copies of Licensed Products are provided to Licensee only to allow
Licensee to exercise Licensee’s right under the license granted herein to use
the Licensed Products during the License Period. All intellectual property
derived from the development of any application is the property of HYTE.
Licensee shall secure and protect the Licensed Products in a manner consistent
with maintaining HYTE’s rights therein. Violation of HYTE’s intellectual
property rights is the basis for immediate termination of this Agreement, which
is in addition to and not in lieu of any other remedies available to HYTE at
law or in equity.
2.3 Restrictions.
Except as expressly authorized in this Agreement, Licensee shall not: (i) rent,
lease, sublicense, distribute, transfer, encumber, copy, reproduce, display,
modify or timeshare the Licensed Products or any portion thereof; (ii) prepare
any derivative work based on the Licensed Products; (iii) remove the patent,
copyright, trademark, trade secret or other proprietary protection legends or
notices that appear on or in the Licensed Products; (iv) distribute, sell or
otherwise transfer, in whole or in part, the Licensed Products; (v) allow any
third parties to access or use the Licensed Products; (vi) demonstrate or
disclose the Licensed Products or the results of any testing or bench-marking
of same to any third parties without HYTE’s prior written consent; or (vii)
except where such restriction is prohibited by applicable law, reverse
engineer, de-compile, modify in any way, or create derivative works from the
Licensed Products or any portions thereof. Licensee agrees that all inventions,
improvements, derivative works, and modifications to the Licensed Software or
any parts thereof made by HYTE that are based, either in whole or in part, on
Licensee’s ideas, feedback, suggestions, or recommended improvements will be
and remain the sole and exclusive property of HYTE. Third-party software
included as part of Licensed Software may only be used in conjunction with
Licensed Software.
2.4 Open Source
Software. The Licensed Software may come bundled or distributed with open
source software which is subject to the terms and conditions of a specific open
source license. THIS OPEN SOURCE SOFTWARE, IF ANY, IS PROVIDED BY HYTE “AS IS”
WITHOUT INDEMNITY OR ANY EXPRESS OR IMPLIED WARRANTY, INCLUDING BUT NOT LIMITED
TO THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE
AND NON- INFRINGEMENT. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS
AGREEMENT, AS IT RELATES TO ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION
WITH OPEN SOURCE SOFTWARE, HYTE SHALL HAVE NO LIABILITY FOR ANY DIRECT,
INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES.
SECTION 3. SUPPORT
SERVICES FOR LICENSED SOFTWARE.
During the period
specified by HYTE, and provided that Licensee has paid for the Support Services
and is in compliance with the terms and conditions of this Agreement, HYTE will
provide Licensee with Updates and Upgrades when HYTE makes such Updates and Upgrades
first generally commercially available to its customer base.
SECTION 4. LIMITED
WARRANTIES.
4.1 Licensed Software
Warranty. During the Licensed Software Warranty Period and subject to
Licensee’s payment of the Support Services Fees, HYTE warrants that the
Licensed Software will substantially conform in all material respects to the
Documentation. HYTE further warrants that, before it delivers the Licensed
Software to Licensee, it has used generally available tools to protect the
Licensed Software against any malicious codes, such as viruses, worms, or
trojan horses.
4.2 Exclusive
Remedies. Licensee shall promptly notify HYTE in writing of any claimed
breach of a warranty contained in Section 4.1. HYTE is not obligated to correct
any such breach if Licensee fails to promptly notify HYTE in writing within the
Licensed Software Warranty Period, which notice must provide a detailed
description of the specific existence and nature of the alleged breach.
Licensee’s sole and exclusive remedy and HYTE’s entire liability for any such
breach of warranty is as follows:
4.2.1 Licensed
Software. Provided a breach exists that is covered by the Licensed Software
Warranty, HYTE shall, as promptly as practicable, and in any event within 30
days after HYTE’s receipt of Licensee’s written notice of breach; (a) correct
such breach; (b) provide Licensee with a plan reasonably acceptable to Licensee
for correcting the breach at HYTE’s expense and in a reasonably timely fashion;
or (c) if neither (a) nor (b) can be accomplished with reasonable commercial
efforts from HYTE, then either HYTE or Licensee may terminate the license for
the affected Licensed Software. If a license is terminated by either Party
under this subsection, Licensee shall de-install the applicable Licensed
Software and return all copies of such Licensed Software and related
Documentation to HYTE. If Licensee elects not to terminate the license for the applicable
Licensed Software, Licensee waives all rights for the applicable breach of the
warranty set forth in Section 4.1. Upon return of the Licensed Software and
related Documentation, as Licensee’s sole remedy, HYTE shall refund any and all
pre-paid Support Services Fees for the affected Licensed Software so returned,
to the extent that such Support Services Fees relate to the time period
following the termination of this Agreement.
4.3 Disclaimer of
Warranty. EXCEPT AS SET FORTH IN THIS SECTION 4, NEITHER HYTE NOR ITS
LICENSORS MAKE ANY WARRANTY, REPRESENTATION, CONDITION OR AGREEMENT WITH
RESPECT TO THE LICENSED PRODUCTS. HYTE AND ITS LICENSORS EXPRESSLY DISCLAIM AND
EXCLUDE TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY AND ALL IMPLIED
WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR
PURPOSE. FURTHER, HYTE MAKES NO WARRANTIES REGARDING, AND IS NOT RESPONSIBLE
FOR, ANY THIRD-PARTY PRODUCTS OR SERVICES NOT PROVIDED SOLEY BY HYTE, OR ANY
DAMAGES, DEFECTS, MALFUNCTIONS OR FAILURES CAUSED BY ANY UNAUTHORIZED
MODIFICATION OF THE LICENSED PRODUCTS OR SUPPORT SERVICES.
SECTION 5. TERM AND TERMINATION.
5.1 Term. The
term of this Agreement commences on the Effective Date and continues until
terminated in accordance with the terms and conditions set forth in this
Agreement (the “Term”).
5.2 Termination;
Effect of Termination. HYTE may terminate this Agreement immediately and
without notice for any violation of HYTE’s intellectual property rights. Either
Party may terminate this Agreement for cause if the other Party has materially
breached this Agreement and has not corrected such breach within 30 days (or
within 5 days for any failure to make a required payment) after its receipt of
written notice specifying such breach from the non-breaching Party. Upon
termination or expiration, Licensee shall immediately discontinue all use of
the Licensed Products and return to HYTE or destroy all copies of same. Upon
the request of HYTE, Licensee shall deliver a letter signed by a duly
authorized officer of Licensee certifying compliance with the requirements set
forth herein.
5.2 Survival. The
provisions of Sections 2.2, 2.3, 7, 8, 9 and 11, all payment obligations that
accrue prior to the expiration or termination hereof, and all others that by
their sense and context are intended to survive the expiration or termination
of this Agreement, survive and continue in effect.
SECTION 6. INVOICING AND
PAYMENT.
6.1 Support Services
Fees. In consideration of the license granted in Section 2 and the Support
Services, Licensee shall pay to HYTE the Support Services Fees for the Licensed
Software.
6.2 Taxes. All
amounts payable pursuant to this Agreement are (i) exclusive of any sales or
use taxes, value added tax (VAT), goods and services tax (GST), and any and all
similar taxes or legally imposed fees, duties, or contributions based upon such
amounts payable, all of which are the sole responsibility of Licensee, and (ii)
reflect the net cash payable to HYTE, net of any and all taxes, levies or
withholdings of any nature. Income taxes may be withheld from such amounts
payable only to the extent legally required under existing tax laws of
Licensee’s legal country of domicile and after full consideration of applicable
income tax treaty provisions, if any, by and between HYTE’s and Licensee’s
respective legal countries of domicile. In the event such income taxes are
withheld, Licensee shall forward such withheld tax to the appropriate tax
authorities within the legally required timeframe and shall provide HYTE with
an official receipt evidencing payment of the withheld tax to the proper tax
authorities. Such receipt must be provided to HYTE within 10 days after payment
by Licensee of the withheld tax to the tax authorities. If Licensee fails to
timely provide HYTE with such receipt, Licensee shall pay to HYTE the full
amount of taxes withheld for which such receipt was not provided in accordance
with this paragraph. Licensee is not responsible for any taxes based upon the
net income of HYTE or its employees.
6.3 Invoices.
Licensee shall pay all amounts due under this Agreement upon receipt of each
applicable invoice from HYTE. Any amounts that remain unpaid for 30 days after
the date of the applicable invoice will bear interest from the invoice date
until the date payment is received by HYTE at a rate that is the lesser of one
and one-half percent (1.5%) per month or the highest rate permitted by
applicable law. All payments made under this Agreement are nonrefundable,
except as specifically provided to the contrary in this Agreement.
SECTION 7.
INDEMNIFICATION BY LICENSEE.
7.1 Indemnity by
Licensee. Licensee shall indemnify, defend and hold harmless HYTE against
any third-party claims that are based on: (i) Licensee’s use of the Licensed
Products in violation of the restrictions in this Agreement; or (ii) Licensee’s
violations of applicable state, local, national or other applicable laws,
regulations or directives, provided that Licensee is given prompt written
notice of such claim. HYTE shall reasonably cooperate in the defense of such
claim, if requested by Licensee and at Licensee’s expense. Licensee has the
sole authority to defend or settle the claim, provided such settlement does not
involve any payment by HYTE or admission of wrongdoing by HYTE.
SECTION 8.
CONFIDENTIALITY.
8.1 Definition.
As used herein, “Confidential Information” means all confidential or
proprietary information belonging to either Party hereto and disclosed, made
available to or learned by the other Party during the Term of this Agreement,
including, without limitation, technical, business, financial and marketing
information, third-party confidential information, the terms and conditions of
this Agreement and, with respect to HYTE, the Licensed Products. Confidential
Information does not include any information that (i) is or becomes generally
available to the public through no improper action or inaction by the receiving
Party or any affiliate, agent, consultant or employee of the receiving Party;
(ii) was properly in the receiving Party’s possession or properly known by it,
without restriction, prior to receipt from the disclosing Party; (iii) was
rightfully disclosed to the receiving Party by a third party without
restriction; or (iv) is independently developed by the receiving Party without
access to, or use of, the disclosing Party’s Confidential Information.
8.2 Confidentiality
Obligation. Subject to the terms of this Agreement, each Party shall (a)
hold in strict confidence all Confidential Information of the other Party, (b)
use the Confidential Information solely to perform its obligations or exercise
its rights under this Agreement, and (c) not transfer, display, convey or
otherwise disclose or make available all or any part of such Confidential
Information to any person or entity other than to its directors, officers,
employees, consultants, auditors, and legal and financial advisors of such Party
(collectively, “Representatives”) who need to know such Confidential
Information and who are under confidentiality obligations at least as
restrictive as the terms of this Agreement. Each Party is responsible for any
breaches of this Agreement by its Representatives. Except as otherwise
expressly provided in this Agreement, neither Party shall use or disclose the
Confidential Information of the other Party without the prior written consent of
the disclosing Party. Each Party shall use the same degree of care to protect
the disclosing Party’s Confidential Information as it uses to protect its own
Confidential Information, but in no circumstances less than reasonable care.
8.3 Permitted Disclosures.
The receiving Party may disclose the Confidential Information of the other Party
in response to a valid court order, subpoena, civil investigative demand, law,
rule, regulation (including, without limitation, any securities exchange
regulation), or other governmental action, provided that (a) to the extent
permitted by applicable law or regulation, the disclosing Party is notified in
writing prior to disclosure of the Confidential Information, (b) the receiving Party
uses reasonable efforts to obtain a protective order or, in the absence of a
protective order, to limit the disclosure of the Confidential Information and
to obtain confidential treatment thereof, and (c) the receiving Party has
allowed the disclosing Party to participate in the proceeding that requires the
disclosure.
8.4 Remedies Upon
Breach. Each Party agrees that the other Party may have no adequate remedy
at law if there is a breach or threatened breach of this Section 8 and,
accordingly, that either Party is entitled (in addition to any other legal or
equitable remedies available to such Party) to seek injunctive or other
equitable relief to prevent or remedy such breach.
8.5 Ownership. As
between the Parties, the Parties agree that the Confidential Information of the
other Party is, and will remain, the property of such other Party. The
receiving Party obtains no right, title, interest, or license in or to any of
the Confidential Information of the disclosing Party, except for the rights
expressly set forth in this Agreement.
SECTION 9. LIMITATIONS
OF LIABILITY.
9.1 EXCEPT FOR AMOUNTS
PAYABLE BY LICENSEE UNDER THIS AGREEMENT, BREACHES OF SECTION 2 BY LICENSEE,
LICENSEE’S INDEMNITY OBLIGATIONS UNDER SECTION 7, OR BREACHES OF SECTION 8 BY
EITHER PARTY, THE CUMULATIVE, AGGREGATE LIABILITY OF EITHER PARTY FOR ALL CLAIMS
RELATED TO THE LICENSED PRODUCTS, THE SUPPORT SERVICES, AND THIS AGREEMENT WILL
NOT IN ANY EVENT EXCEED THE TOTAL AMOUNT OF ALL FEES PAID OR PAYABLE TO HYTE
UNDER THIS AGREEMENT FOR THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT
GIVING RISE TO THE LIABILITY CLAIM. EXCEPT FOR BREACHES OF SECTION 2 BY
LICENSEE, LICENSEE’S INDEMNITY OBLIGATIONS UNDER SECTION 7, OR BREACHES OF
SECTION 8 BY EITHER PARTY, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY
SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES ARISING IN ANY
WAY OUT OF THE USE OF THE LICENSED PRODUCTS OR THIS AGREEMENT, INCLUDING,
WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOST REVENUE, LOSS OF USE, LOSS
OF DATA, COSTS OF RECREATING DATA, THE COST OF ANY SUBSTITUTE EQUIPMENT, PROGRAM,
OR DATA, OR CLAIMS BY ANY THIRD PARTY. THE EXISTENCE OF MORE THAN ONE CLAIM
WILL NOT ENLARGE OR EXTEND THESE LIMITS.
9.2 THE LIMITATIONS OF
LIABILITY SET FORTH IN THIS AGREEMENT ARE FUNDAMENTAL ELEMENTS OF THIS
CONTRACT, NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED
REMEDY. THE PARTIES ACKNOWLEDGE AND AGREE THAT THEY WOULD BE UNABLE TO PROVIDE
THE LICENSED PRODUCTS OR PERFORM HEREUNDER ON A COMMERCIALLY REASONABLE BASIS
WITHOUT SUCH LIMITATIONS. IN JURISDICTIONS THAT PROHIBIT THE EXCLUSION OF
LIABILITY OR THE LIMITATION OF IMPLIED WARRANTIES, THE LIMITATIONS AND
EXCLUSIONS IN THIS SECTION 9 MAY BE LIMITED IN THEIR APPLICATION TO LICENSEE
AND, DEPENDING ON LOCAL LAW, LICENSEE MAY HAVE OTHER SPECIFIC LEGAL RIGHTS.
SECTION 10. FREE TRIAL
10.1 If Licensee is
eligible for a free trial of the Licensed Software pursuant to separate order
documentation, HYTE will make the Licensed Software and Documentation available
to Licensee on a trial basis free of charge for the time period set forth in the
applicable order documentation. Additional trial terms and conditions may
appear in the applicable order documentation and any such additional terms and
conditions are incorporated into this Agreement by reference and are legally
binding.
10.2 LICENSEE
ACKNOWLEDGES THAT ANY FREE TRIAL VERSION OF THE LICENSED SOFTWARE INCLUDES A
DISABLING MECHANISM THAT WILL TERMINATE LICENSEE’S USE OF THE LICENSED SOFTWARE
AT THE END OF THE TRIAL PERIOD UNLESS LICENSEE HAS PURCHASED A LICENSE FOR THE
LICENSED SOFTWARE AND SUPPORT SERVICES. ANY DATA LICENSEE ENTERS INTO THE
LICENSED SOFTWARE, AND ANY CUSTOMIZATIONS MADE TO THE LICENSED SOFTWARE BY OR
FOR LICENSEE DURING THE FREE TRIAL, WILL BE PERMANENTLY LOST UNLESS LICENSEE
PURCHASES PAID SUPPORT SERVICES OR EXPORTS SUCH DATA BEFORE THE END OF THE FREE
TRIAL PERIOD. NOTWITHSTANDING SECTION 4 (LIMITED WARRANTIES), DURING THE FREE
TRIAL, THE LICENSED SOFTWARE AND DOCUMENTATION IS PROVIDED “AS-IS” WITHOUT ANY
WARRANTY.
SECTION 11. GENERAL
PROVISIONS.
11.1 Governing Law.
This Agreement and the rights and obligations of the Parties with respect to
their relationship under this Agreement are governed by, and must be construed
and enforced in accordance with, the laws of the State of Texas, without
reference to its conflicts of law principles. The Parties hereby consent and
submit to the exclusive jurisdiction of the federal and state courts sitting in
Dallas County, Texas, for the resolution of any claims or disputes arising out
of or related to this Agreement.
11.2 Specific
Performance; Cumulative Remedies. Each Party acknowledges that a breach of
this Agreement cannot be adequately compensated for by money damages and agrees
that specific performance is an appropriate remedy for any breach or threatened
breach hereof. Each Party further acknowledges that any unauthorized use or
disclosure to any third party in breach of this Agreement will result in
irreparable and continuing damage to the other Party. Accordingly, each Party
hereby: (i) consents to the issuance of any injunctive relief or the
enforcement of other equitable remedies against it at the suit of the other Party
(without bond or other security), to compel performance of any of the terms of
this Agreement; and (ii) waives any defenses thereto, including without
limitation the defenses of failure of consideration, breach of any other
provision of this Agreement, and availability of relief in damages. All
remedies, whether under this Agreement, provided by law, or otherwise, are
cumulative and not alternative.
11.3 Attorneys’ Fees.
The prevailing Party in any action or proceeding to enforce this Agreement,
including any efforts to collect amounts due under this Agreement by engagement
of any attorney, collection agency or otherwise, is entitled to recover from
the other Party, in addition to its damages, its costs and attorneys’ fees.
11.4 Entire Agreement.
This Agreement (including any attached exhibits and schedules which are
incorporated herein by this reference) and any other documents expressly
contemplated hereby constitute the entire agreement between the Parties with
respect to the subject matter hereof. This Agreement supersedes all prior and
contemporaneous written or oral agreements, communications, and understandings
between the Parties with respect to the subject matter hereof. This Agreement
is executed in English and no translation of this Agreement has any effect on
the interpretation hereof. In the event of any conflict or inconsistency
between this Agreement and any attachment, then this Agreement controls and
governs over such attachment.
11.5 Amendment. HYTE
reserves the right, at its sole discretion, to modify the terms and conditions
of this Agreement, at any time and without prior notice. If
HYTE modifies this Agreement, it will post the modification on the HYTE
website at the following URL: https://hyte.io/hyte-license-agreement/. HYTE
will also update the “Last Updated Date” at the top of this Agreement. By continuing to access or use the Licensed
Software after HYTE has posted a modification on the website or has otherwise
provided Licensee with notice of a modification, Licensee agrees to be bound by
the modified Agreement. If the modified
Agreement is not acceptable to Licensee, Licensee’s only recourse is to cease
using the Licensed Software.
11.6 Waiver. No
waiver of any provision of this Agreement is effective unless in writing and
signed by the Party against whom such waiver is sought to be enforced. No
failure or delay by either Party in exercising any right, power, or remedy
under this Agreement operates as a waiver of any such right, power, or remedy.
The express waiver of any right or default hereunder is effective only in the
instance given and does not operate as or imply a waiver of any similar right
or default on any subsequent occasion.
11.7 Severability.
If any provision in this Agreement is invalid or unenforceable, that provision
will be construed, limited, modified or severed to the extent necessary to
eliminate its invalidity or unenforceability, and the other provisions of this
Agreement will remain in full force and effect.
11.8 Successors and
Assigns; Assignment. This Agreement is binding upon and inures to the
benefit of the Parties hereto and their respective successors and permitted
assigns. Licensee shall not transfer or assign (by operation of law or
otherwise) this Agreement or any of its rights or obligations under this Agreement
or delegate any of its duties under this Agreement without the prior written
consent of HYTE, which consent will not be unreasonably withheld. Any attempted
assignment in violation of this Section 11.9 is null and void and of no force
or effect.
11.9 Export.
Licensee hereby agrees not to knowingly, directly or indirectly, export or
transmit any of the Licensed Products to any country to which such transmission
is restricted by applicable regulations or statutes, without the prior written
consent, if required, of the Office of Export Administration of the U.S
Department of Commerce, Washington D.C. 20230.
11.10 Notice of U.S.
Government Restricted Rights. The Licensed Software and Documentation
provided under this Agreement are “commercial items” as that term is defined at
48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial
computer software documentation,” as these terms are used in 48 C.F.R. 12.212.
Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all
U.S. Government end-users acquire the Licensed Software and documentation with
only those rights set forth herein. Owner and licensor is HYTE Technologies,
Inc., 3824 Cedar Springs Road, Suite 430, Dallas, TX 75219.
11.11 Force Majeure.
If by reason of labor disputes, strikes, lockouts, riots, war, inability to
obtain labor or materials, earthquake, fire or other action of the elements,
accidents, governmental restrictions, appropriation or other causes beyond the
control of a Party hereto, either Party is unable to perform in whole or in
part its obligations as set forth in this Agreement, excluding any obligations
to make payments hereunder, then such Party will be relieved of those
obligations to the extent it is so unable to perform and such inability to
perform will not make such Party liable to the other Party. Neither Party will
be liable for any losses, injury, delay or damages suffered or incurred by the
other Party due to the above causes.
11.12 Notices.
Any notice, demand or other communication required or permitted to be given
under this Agreement must be in writing, properly addressed to the Party to
receive notice at the address or addresses for notice as either Party may
hereafter designate in writing to the other Party given in the manner required
herein, and will be deemed given and received: (i) upon receipt if delivered
personally or by facsimile with confirmed receipt, (ii) on the next business
day after delivery to a nationally recognized overnight courier service, or (iii)
on the third business day after deposit with the United States Postal Service
if sent by registered or certified mail, return receipt requested. Any notice
to HYTE should be sent to HYTE Technologies, Inc., 3824 Cedar Springs Road,
Suite 430, Dallas TX 75219, Attention: Legal Department.
11.13 Audit Rights.
Licensee shall keep adequate books and records to demonstrate its compliance
with this Agreement. At any time during the Term of this Agreement and for a
period of 3 years thereafter, HYTE or its duly authorized agent, with
reasonable prior notice to Licensee, may review the books and records related
to verifying Licensee’s compliance with its obligations under this Agreement,
including, but not limited to, Licensee’s obligations related to payments and
confidentiality. Licensee shall reasonably cooperate with HYTE in such effort
and shall promptly provide the books and records required for such review,
together with access to the relevant personnel of Licensee that HYTE may need
to discuss such books and records. Additionally, Licensee agrees to allow HYTE
to electronically access the Licensed Products as installed at Licensee’s
location(s) to verify Licensee’s compliance with this Agreement.