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.

Terms and Conditions

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.

 

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