Subscription Services Agreement
THIS SUBSCRIPTION SERVICES AGREEMENT (THIS “AGREEMENT”) OF XTYPE.IO LTD. (“XTYPE”, OR THE “COMPANY”) IS EFFECTIVE AS OF THE DATE OF ACCEPTANCE BY THE CUSTOMER OF THE TERMS OF THIS AGREEMENT THROUGH XTYPE’S WEBSITE OR OTHER MEANS (“EFFECTIVE DATE”). THE INDIVIDUAL ACCEPTING THIS AGREEMENT ON BEHALF OF AN ENTITY REPRESENTS AND WARRANTS THAT SHE/HE IS DULY AUTHORIZED AND HAS FULL AUTHORITY TO EXECUTE THIS AGREEMENT ON BEHALF OF SUCH ENTITY.
Customer and xtype may be referred to herein individually as a “Party” and collectively as the “Parties.”
Any entity that directly or indirectly controls is controlled by, or is under common control with the subject entity. “Control”, for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
This Subscription Services Agreement and any exhibits, schedules, and addendums thereto.
Any and all information and know-how of a Party disclosing information to the other Party in relation to this Agreement (a “Disclosing Party” or a “Discloser”), in whatever form, that relates to the business of the Disclosing Party, financial condition, technology and/or products of Disclosing Party, provided or disclosed to the receiving Party (the “Recipient”) by a Disclosing Party directly or indirectly, in writing, orally, or by inspection, prior to or during the term of this Agreement, whether or not marked or otherwise designated as “confidential”, “proprietary” or with any other legend indicating its proprietary nature. By way of illustration and not limitation, Confidential Information includes all forms and types of financial, business, scientific, technical, or engineering information and know-how, including but not limited to specifications, prototypes, trade secrets, designs, techniques, processes, procedures, methods, compilations, inventions and developments, products, equipment, samples, analyses, research and clinical trial results, data, marketing information, projections, plans and reports, business plans or strategies, and any other data, documentation, or information related thereto, as well as improvements thereof, whether in tangible or intangible form, and whether or not stored, compiled or memorialized in any media or in writing, including information disclosed directly or indirectly, orally, in any written form, or in any magnetically or electronically recorded form, or as a result of any visitation, consultation with Disclosing Party or other parties on its behalf such as managers, employees, directors, officers, consultants, clients, suppliers and customers etc; provided, however, that Confidential Information shall not include any information that: (a) is or becomes generally known to the public through no fault or breach of this Agreement by Recipient; (b) was rightfully in Recipient’s possession at the time of disclosure without restriction on use or disclosure; (c) is independently developed by Recipient without use of, or reference to, Discloser’s Confidential Information; or (d) was or is rightfully obtained by Recipient from a third party not under a duty of confidentiality and without restriction on use or disclosure.
“Customer Configuration Data”
Data including system configuration, customization, updates, and code changes (metadata only) made to Customer’s systems collected and processed by xtype through the Subscription Services (the “Change(s)”). For the avoidance of doubt, xtype does not collect any Customer business data or any personally identifiable information other than the designated identity of the logged-in User that created the applicable change(s) and other than information collected upon registration to the Subscription Services.
Software, methodologies, templates, business processes, documentation, or other material authored, invented, or otherwise created or licensed (other than by or from xtype) by Customer using or for use with the Subscription Services, excluding the xtype Technology.
xtype documentation relating to the operation and use of the Subscription Services, including technical program or interface documentation, user manuals, operating instructions, and release notes, as updated from time to time by xtype.
A merger or consolidation or any other transaction made by the Company, as a result of which the shareholders of the Company immediately prior to a such transaction do not own, immediately after such transaction, by virtue of their shareholdings in the Company immediately prior to such transaction, a majority, by voting power, of the share capital of the surviving entity (which surviving entity may be the Company); (b) the disposition of all or substantially all of the assets of the Company (including by way of a grant of an exclusive license or lease to all or substantially all of the Company’s or any subsidiary’s intellectual property), or (c) any other transaction or series of related transactions in which control of the Company is acquired by any person, other than in connection with a bone fide investment by a third party.
Code, files, scripts, agents, or programs intended to do harm, including, for example, viruses, worms, time bombs, and trojan horses.
Online applications, services, code, script, or software products that are provided by entities or individuals other than xtype, and that may interoperate with the Subscription Services and the ServiceNow Platform.
A written ordering document specifying the Subscription Services to be provided hereunder that is entered into between Customer and xtype or xtype Partner, as applicable.
The script provided by xtype via a ServiceNow update set designed to execute scheduled snapshots of the ServiceNow instance it is installed on.
The hosted platform and/or software-as-a-service made available by ServiceNow under the “ServiceNow” brand.
The xtype propriety Enterprise Platform Engineering for the ServiceNow Platform or other software-as-a-service application(s) ordered by Customer under an Order Form and made available by xtype. “Subscription Services” excludes Non-xtype Applications and other application programming interfaces (“APIs”) that may be available for use with the Subscription Services. For the avoidance of doubt, Non-xtype Applications and APIs must be purchased directly from the applicable software provider
The term of authorized use of the Subscription Services as set forth in the applicable Order Form.
An individual who is authorized by Customer to use the Subscription Services, for whom Customer has ordered the Subscription Services, and to whom Customer (or xtype at Customer’s request) has supplied a user identification and password. Users may include, for example, employees, consultants, contractors, and agents of Customer, and third parties with which Customer transacts business.
An authorized reseller or distributor of xtype’s products and/or services.“xtype Service Portal”
The ServiceNow service portal provided by xtype enables Users to access and utilize the functionality of the Subscription Services as determined in the Documentation.
(i) the Script, xtype Service Portal, Documentation, and xtype’s technology and methodologies (including, without limitation, products, software tools, hardware designs, algorithms, templates, software (in source and object forms), architecture, class libraries, objects, and documentation), existing as of the Effective Date or otherwise arising outside of work under a professional service or statement of work, created, authored or procured by xtype or xtype’s licensors in connection with or in relation to the Subscription Services; (ii) updates, upgrades, improvements, configurations, extensions, and derivative works of the foregoing and related technical documentation or manuals; and (iii) intellectual property anywhere in the world relating to the foregoing.
2. SCOPE. This Agreement sets forth the terms on which Customer may utilize the xtype Technology and Subscription Services. The xtype Technology and Subscription Services are further described in the Documentation as provided to the Customer and may be amended from time to time in accordance with the terms herein.
3. REGISTRATION AND PROVISION OF SUBSCRIPTION SERVICES. Upon payment by Customer of the applicable subscription fees as stated in each respective Order Form and registration with xtype, subject to the terms of this Agreement and the Documentation, xtype will provide Customer with the update-set containing the Script activating the xtype Service Portal and Subscription Services, and Customer shall be authorized to use the Subscription Services, for Customer’s own internal use during the Subscription Term, through a single authorized instance of the ServiceNow Platform. No license is granted to Customer under this Agreement to use or access the ServiceNow Platform. Access to the ServiceNow Platform must be separately purchased from ServiceNow. The customer is not entitled to delivery of a copy of the Script apart from its deployment on the Customer’s authorized instances of the ServiceNow Platform.
4. USAGE PARAMETERS. The Subscription Services may be subject to limited usage parameters, including quantities and/or functionality restrictions referenced in the specific Order Form applicable to the acquired Subscription Services and/or enabled following registration throughout the Subscription Term, subject to the purchase of service upgrade(s) and additional consent by Customer. Unless otherwise specified:
- a quantity in an Order Form refers to ServiceNow Instances and each subscription shall enable Customer to use the Subscription Services in connection with one ServiceNow Instance;
- to the extent that the Order Form provides a limit on the amount of Users who may access the xtype Service Portal or Subscription Services, such xtype Service Portal or Subscription Services may not be accessed by more than that ordered number of Users; and
- a User’s password may not be shared with any other individual. Customer will cooperate reasonably with any xtype audit of Customer’s use of the Subscription Service. If xtype determines that Customer has exceeded its permitted use of the Subscription Service then, without limiting from any other rights or remedies available to xtype hereunder, xtype will notify Customer and within ten (10) days thereafter Customer shall either: (a) disable any unpermitted use or (b) purchase additional subscriptions commensurate with Customer’s actual use.
5. CUSTOMER RESPONSIBILITIES. Customer will: (i) be responsible for Users’ compliance with this Agreement; (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Subscription Services and notify xtype promptly of any such unauthorized access or use; and (iii) use the Script, xtype Service Portal and Subscription Services only in accordance with the Documentation and applicable laws and government regulations.
6. USAGE RESTRICTIONS. Customer will not (and shall not permit others to) do the following with respect to any portion of the xtype Technology:
- use the xtype Technology with external programs in a manner that intentionally circumvents contractual usage restrictions;
- license, sub-license, sell, re-sell, rent, lease, transfer, distribute or time share or otherwise make any of the xtype Technology available for access by third parties except as otherwise expressly provided in the applicable Order Form;
- access the xtype Technology for the purpose of developing or operating products or services intended to be offered to third parties in competition with the Subscription Services or any of xtype’s products or services;
- disassemble, reverse engineer or decompile any portion of the xtype Technology;
- copy, create derivative works based on or otherwise modify the xtype Technology except as permitted in this Agreement or attempt to derive the source code of any portion of the xtype Technology (except and only to the extent applicable law allows even when this Agreement does not);
- remove, obscure, or alter any trademark or copyright, confidentiality or other rights notice or legend appearing on or in the Script, xtype Service Portal or other xtype Technology or otherwise made available by xtype;
- use the xtype Technology to reproduce, distribute, display, transmit or use material protected by copyright or other intellectual property right (including the rights of publicity or privacy) without first obtaining the permission of the owner;
- use the xtype Technology to create, use, send, store or run Malicious Software or other harmful computer code, files, scripts, agents or other programs or otherwise engage in a malicious act or disrupt the xtype Technology’s security, integrity or operation;
- access or disable any xtype or third party data, software or network;
- use functionality outside of the permitted usage parameters even if such functionality is accessible;
- disclose results of any system benchmark tests without xtype’s prior written consent;
- separate components of the Software (as defined below) for use on different devices; or
- use the Script, the Subscription Services or any portion of the xtype Technology in any manner that does not comply with this Agreement or applicable laws and regulations.
7. SERVICENOW PLATFORM. The Subscription Services are intended to be utilized on the ServiceNow Platform or other xtype supported platforms as may be added by xtype. The customer must be an existing ServiceNow end-user or is required to purchase ServiceNow in order to use and access xtype’s Subscription Services either directly from ServiceNow or through a ServiceNow approved reseller, as applicable. The customer must be operating on a current ServiceNow subscription release in accordance with ServiceNow’s Upgrade Policy in ServiceNow’s Subscription Service Guide as published at:
Customer acknowledges that if ServiceNow is inoperable and/or if ServiceNow services to Customer are terminated for any reason, the Script installed in the affected ServiceNow instance and the related Subscription Services may be inaccessible or inoperable and xtype will not thereby be deemed to be in breach of this Agreement.
8. NON-XTYPE PROVIDERS. xtype or third parties may make available third-party products or services, including, for example, Non-xtype Applications and implementation and other services. With respect to such Non-xtype Applications, the following shall apply:
- Except as expressly provided herein any acquisition by Customer of such non- xtype products or services, and any exchange of data between Customer and any non-xtype provider, is solely between Customer and the applicable non-xtype provider; xtype does not warrant or support Non-xtype Applications or other non-xtype products or services, whether or not they are designated by xtype as “certified” or otherwise;
- If Customer installs or enables a Non-xtype Application for use with the Subscription Services, Customer acknowledges that xtype is not responsible for any disclosure, modification, or deletion of any data resulting from any access by a Non-xtype Application; any exchange of data between Customer and any non-xtype Application is solely between Customer and the applicable non-xtype provider; and
- the Subscription Services may contain features designed to interoperate with Non-xtype Applications; if the provider of a Non-xtype Application ceases to make the Non-xtype Application available for interoperation with the corresponding Subscription Services, xtype may cease providing those Subscription Services features.
9. ACCOUNTS. The customer is responsible and liable for all access to and use of the Script, xtype Service Portal, and Subscription Services occurring under Customer accounts or logins. Customer must notify xtype immediately of any unauthorized use of the Script, xtype Service Portal, Subscription Services, or any other actual or suspected breach of security regarding the xtype Technology of which Customer becomes aware.
10. MAINTENANCE AND SUPPORT. Throughout the Subscription Term, xtype will provide Customer support, upgrades, bug fixes, and other maintenance services applicable to the Subscription Services at no additional charge in accordance with the xtype license as detailed in section 19 below on support SLA
11. INVOICING AND PAYMENT. This Section only applies to Subscription Services purchased directly from xtype. If Customer purchases Subscription Services from an xtype Partner, the applicable fees will be paid by Customer to the xtype Partner in accordance with the terms and conditions between the Customer and the xtype Partner.
- Generally. Except as expressly provided otherwise in the applicable Order Form, all fees are due and payable, in the currency specified on the Order Form, within 30 days of the invoice date.
- Overdue Fees. Unless stated otherwise in the applicable order, any amount due hereunder and not received by xtype by the applicable due date may, at xtype’s discretion, be subject to an additional charge of the lesser of (a) 1.5% per month or (b) the maximum permissible rate under applicable law, from the date due until paid. xtype reserves the right to suspend Customer’s use of the Subscription Services or any portion of the xtype Technology for which fees are past-due until such past-due fees are paid. All amounts due to and invoiced by xtype are net amounts to be received by xtype. Except as expressly provided in this Agreement, all fees are nonrefundable. Customer shall pay all amounts due under this Agreement without setoff, deduction, recoupment, or withholding of any kind, whether under this Agreement, applicable law, or otherwise and whether relating to xtype’s breach, bankruptcy, or otherwise.
- Taxes. Customer is responsible for and will pay directly any and all taxes, duties, and charges incurred in connection with the performance of this Agreement, including, but not limited to, sales and use taxes, withholding taxes, duties, and charges imposed by federal, state or local governmental authorities in whatever country, but excluding corporate income taxes incurred by xtype, so that the amount credited to xtype’s account matches the invoiced amount. If Customer is exempt from any taxes, Customer must provide xtype with the appropriate tax exemption documentation when the applicable Order Form is executed.
12. PROPRIETARY RIGHTS.
- xtype Ownership. As between Customer and xtype, all rights, title, and interest in and to all intellectual property rights in the xtype Technology, including without limitation, all copyrights, modifications, know-how, techniques, enhancements, and derivatives thereof, are and remain solely owned by xtype and xtype’s respective licensors notwithstanding any other provision in this Agreement. Except as expressly provided in this Agreement, xtype reserves all rights in the xtype Technology and does not grant Customer any rights thereto, express or implied.
- Customer Ownership. As between Customer and xtype, Customer shall retain all rights, title, and interest in and to its intellectual property rights in Customer Configuration Data and Customer Technology.
- License by Customer for Customer Configuration Data. Customer grants xtype and its hosting providers a worldwide, limited-term license to copy, transmit, display, and process Customer Configuration Data, and any Non-xtype Applications and program code created by or for Customer, as necessary for xtype to provide the Subscription Services in accordance with this Agreement. Subject to the limited licenses granted herein, xtype acquires no right, title, or interest from Customer or its licensors under this Agreement in or to any Customer Configuration Data or Non- xtype Application. xtype does not share any Customer Configuration Data with any third party in connection with the provision of the Subscription Services unless Customer provides explicit permission to xtype to do so. xtype will erase any Customer Configuration Data from its records promptly upon request by the Customer.
- Limited Software License. Unless accompanied by a separate license agreement, the Script and any software provided by xtype to Customer as part of the Subscription Services (the “Software”) is subject to the following terms: (a) xtype grants Customer a nonexclusive, non-transferable, non-sublicensable, revocable, limited subscription-based license to install, access and use the Software for the Subscription Term pursuant to the applicable usage parameters set forth in this Agreement; (b) any Non- xtype Application linked to or referenced from the Software, are licensed to Customer by the third parties that own such code, not by xtype (notices, if any, for the Non- xtype Application(s) are included for Customer’s information only); and (c) the Software is licensed to Customer, not sold, and xtype reserves all rights to the software not expressly granted by xtype, whether by implication, estoppel, or otherwise.
- License by Customer to Use Feedback. Customer grants to xtype a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Subscription Service any suggestion, enhancement request, recommendation, correction, or other feedback provided by Customer or Users relating to the xtype Technology or the operation of the Subscription Services.
- Federal Government End Use Provisions. If Customer is an agency or contractor of the U.S. Government, the Parties agree that Customer receives only those rights with respect to the Subscription Services, xtype Technology, and Documentation as are granted to all other end users under license in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If an agency or contractor of the U.S. Government has a need for rights not conveyed under these terms, it must negotiate with xtype to determine if there are acceptable terms for granting such rights, and a mutually acceptable written addendum specifically granting such rights must be included in any applicable contract or agreement.
13. PROTECTION OF CUSTOMER CONFIGURATION DATA.
- Protection Methods. xtype will maintain administrative, physical, and technical safeguards for the protection of the security, confidentiality, and integrity of Customer Configuration Data in its possession. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification, or disclosure of Customer Configuration Data by xtype personnel except (a) to provide the Subscription Services; (b) to prevent service or technical problems; (c) to provide Customer support; (d) as compelled by law in accordance with the Section 14 (Confidentiality), or (e) as expressly permitted in writing by Customer.
- Limits for Customer Configuration Data Protection. Notwithstanding anything to the contrary in this Agreement, xtype’s obligations extend only to those systems, networks, network devices, facilities, and components over which xtype exercises control. This Section 13 does not apply to (a) any ServiceNow third-party datacenter or any infrastructure within the sole control of ServiceNow, including the ServiceNow Platform (b) any data hosted in Customer’s existing ServiceNow production instance(s); (c) any data in Customer’s virtual private network (VPN) or a third party network; or (d) any data processed by Customer or its users in violation of the Agreement.
- Aggregated Data and Analytics. Notwithstanding anything to the contrary above, subject to applicable data privacy laws and the confidentiality provisions in this Agreement, Customer agrees that xtype may collect, use and disclose quantitative data derived from the use of the Subscription Services for industry analysis, benchmarking, analytics, marketing, and other business purposes in support of the provision of the Subscription Services. xtype shall not share, sell, rent, or trade such data with third parties for promotional purposes. All data collected, used, and disclosed will be in aggregate form only and will not identify Customer or Users and will not include or use Customer’s business data.
- Restrictions. Recipient shall: (a) hold in confidence and not disclose to any third party any Confidential Information of Discloser; (b) protect such Confidential Information with at least the same degree of care that Recipient uses to protect its own Confidential Information, but in no case, less than reasonable care; (c) only access or use Discloser’s Confidential Information as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement; and (d) limit access to Confidential Information to those of its employees or authorized representatives having a need-to-know and who have signed confidentiality agreements containing, or are otherwise bound by, confidentiality obligations at least as restrictive as those contained herein.
- Legal Disclosure. The recipient may disclose Confidential Information to the extent such disclosure is required: (a) by a valid court order or other governmental body having jurisdiction, provided that Recipient gives Discloser reasonable prior written notice of such disclosure and makes a reasonable effort to obtain or to assist Discloser in obtaining a protective order; or (b) to establish or enforce Recipient’s rights under this Agreement.
- Return. Upon termination or expiration of this Agreement or the request of Discloser, Recipient must return or destroy all of Discloser’s Confidential Information then in Recipient’s possession or control; provided, however, that if any Confidential Information is held in Recipient’s archives or back-up systems, the Confidential Information will be allowed to expire and be deleted or destroyed in accordance with Recipient’s commercially reasonable archiving or backup policies.
- Equitable Remedies. The Parties agree that Recipient’s disclosure of Confidential Information except as provided herein may result in irreparable injury for which a remedy in money damages may be inadequate. The Parties further agree that in the event of such disclosure or threatened disclosure, Discloser may be entitled to seek injunctive relief to prevent the breach or threatened breach without the necessity of proving an irreparable injury or the inadequacy of monetary damages, in addition to remedies otherwise available to Discloser at law or in equity.
15. REPRESENTATIONS, WARRANTIES, AND DISCLAIMERS.
- Each Party warrants to the other Party that: (a) such Party is a business duly organized, validly existing, and in good standing under the laws of its jurisdiction of organization; (b) such Party has all requisite corporate power, financial capacity, and authority to execute, deliver, and perform its obligations under this Agreement; (c) the execution, delivery, and performance of this Agreement constitutes the legal, valid, and binding agreement of such Party; and (d) no consent, approval or withholding of objection is required from any entity, including any governmental authority, with respect to such Party’s entering into, or performance under, this Agreement.
The Customer further represents to the Company that, as of the Effective Date, there is no outstanding litigation, arbitrated matter, or other dispute to which Customer Party is a party, which, if decided unfavorably to it, would reasonably be expected to have a potential or actual material adverse effect on the Customer’s ability to fulfill its obligations hereunder.
- XTYPE WARRANTS THAT (A) THE XTYPE TECHNOLOGY AND SUBSCRIPTION SERVICES SHALL PERFORM MATERIALLY IN ACCORDANCE WITH THE DOCUMENTATION, AND (B) THE FUNCTIONALITY OF THE XTYPE TECHNOLOGIES AND SUBSCRIPTION SERVICES WILL NOT BE MATERIALLY DECREASED DURING A SUBSCRIPTION TERM, PROVIDED THAT THIS WARRANTY SHALL NOT APPLY IN CASE OF ANY DECREASE IN FUNCTIONALITY WHICH IS A RESULT OF INTEGRATION OR BUNDLING OF THE XTYPE SERVICES WITH THIRD PARTY SERVICES, USE OF CUSTOMER CONFIGURATION DATA OR NON- XTYPE APPLICATIONS, ANY USE OF THE XTYPE SERVICES IN A MANNER INCONSISTENT WITH THE DOCUMENTATION, ANY MALICIOUS SOFTWARE INTRODUCED BY CUSTOMER, USER OR ANY THIRD PARTY OR ANY OTHER EVENT BEYOND XTYPE’S REASONABLE SCOPE OF CONTROL. THE SOLE AND EXCLUSIVE REMEDY OF THE CUSTOMER FOR BREACH OF ANY WARRANTY SHALL BE LIMITED TO CORRECTION OR REPLACEMENT IN ACCORDANCE WITH THE SERVICES TIMEFRAMES SET FORTH IN THE ORDER OR CREDIT ADJUSTMENT ON A PRORATED BASIS, AT XTYPE’S SOLE DISCRETION OF THE PRICE FOR SERVICES PROVEN TO HAVE FAILED TO MATERIALLY CONFORM TO THE SPECIFICATION SET FORTH IN THE DOCUMENTAION.
- EXCEPT AS SPECIFICALLY SET FORTH IN THIS SECTION 15, ALL COMPONENTS OF THE XTYPE TECHNOLOGY, INCLUDING, WITHOUT LIMITATION, THE SOFTWARE, APP, SUBSCRIPTION SERVICES AND DOCUMENTATION, ARE PROVIDED “AS IS” AND WITHOUT ANY REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS OF ANY KIND. XTYPE AND ITS LICENSORS AND/OR SUPPLIERS MAKE NO OTHER REPRESENTATIONS AND GIVE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE REGARDING THE APP, XTYPE SERVICES, AND/OR THE DOCUMENTATION PROVIDED UNDER THIS AGREEMENT AND SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, NON-INFRINGEMENT, DURABILITY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE. ADDITIONALLY, THE CUSTOMER ACKNOWLEDGES THAT THE AVAILABILITY AND FUNCTIONALITY OF THE XTYPE SERVICES DEPEND ON VARIOUS FACTORS AND ELEMENTS, INCLUDING SOFTWARE, HARDWARE, AND COMMUNICATION NETWORKS, AND PARTIALLY PROVIDED BY THIRD PARTIES, INCLUDING THIRD-PARTY HOSTING AND STORAGE SERVICES WHICH ARE NOT FAULT-FREE AND XTYPE DOES NOT WARRANT OR GUARANTEE THAT THE XTYPE SERVICES WILL OPERATE WITHOUT DISRUPTION, LIMITATIONS, DELAYS, ERRORS OR INTERRUPTIONS OR THAT THEY WILL BE ACCESSIBLE OR AVAILABLE AT ALL TIMES OR IMMUNE FROM UNAUTHORIZED ACCESS OR ERROR-FREE.
16. INDEMNIFICATION; LIMITATION OF LIABILITY.
- xtype Indemnity. xtype shall defend and/or settle at its expense, any claims, actions, or proceedings against Customer and its Affiliates and its and their officers, directors, employees, and contractors (the “Customer Indemnified Parties”) to the extent arising out of or relating to any misappropriation or infringement by the xtype Technology of any third party’s proprietary or intellectual property right (“Customer Claims”), and xtype shall pay all damages finally awarded by a court of competent jurisdiction to such third party against Customer, or any settlement amounts agreed by xtype in writing; subject to the conditions that: (a) Customer shall notify xtype promptly of any Customer Claims; (b) Customer shall permit xtype to control the defense and settlement of such Customer Claims (provided that Customer may participate with counsel of its own choosing, at its own expense); and (c) Customer shall assist xtype, at xtype’s expense, in defending or settling such Customer Claims. xtype shall not be liable for any settlement amounts entered into by Customer without xtype’s prior written approval. If xtype has reason to believe that it would be subject to an injunction or continuing damages based on the APP or Subscription Services, then xtype shall be entitled to either modify the APP and/or Subscription Services (or any other applicable part of the xtype Technology) to make them non-infringing and/or remove the misappropriated material, replace the App or Subscription Services or portion thereof with a service or materials that provide substantially the same functionality or information, or, if neither of the foregoing is commercially practicable, require Customer to cease using the App and Subscription Services. The foregoing notwithstanding, xtype shall have no liability for a claim of infringement or misappropriation to the extent caused by (x) the combination of xtype Technology with any other service, software, data, or products not provided by xtype, which claim would have been avoided if the xtype Technology had not been so combined; (y) the use of any Customer Technology or Customer Configuration Data; or (z) any breach by any Customer Indemnified Party of this Agreement or any other terms applicable to the App and/or Subscription Services. THE FOREGOING IS XTYPE’S SOLE AND EXCLUSIVE LIABILITY AND THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OR MISAPPROPRIATION OF ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.
- Customer Indemnity. Customer shall defend and/or settle at its expense, any claims, actions or proceedings against xtype and its Affiliates and its and their officers, directors, employees and contractors (the “xtype Indemnified Parties”) to the extent arising out of or relating to (a) bodily injury or damage to tangible or real property, including death, caused by or arising out of any negligent act or omission of Customer or any of its Affiliates or any User or any of its or their officers, directors, employees, contractors or agents; (b) the provision, use or failure of any product or service provided by Customer, including, without limitation, the Customer Technology and Customer Configuration Data; (c) any infringement or misappropriate of any intellectual property or other rights by Customer or any User; (d) any violation of any law or regulation by Customer or any of its Affiliates or any User or any of its or their officers, directors, employees, contractors or agents; or (e) Customer’s breach of Section 6 of this Agreement (“xtype Claims”), and Customer shall pay all damages finally awarded by a court of competent jurisdiction to such third party against any of the xtype Indemnified Parties, or any settlement amounts agreed by Customer in writing; subject to the conditions that: (a) xtype shall notify Customer promptly of any xtype Claims; (b) xtype shall permit Customer to control the defense and settlement of such xtype Claims (provided that xtype may participate with counsel of its own choosing, at its own expense); and (c) xtype shall assist Customer, at Customer’s expense, in defending or settling such xtype Claims. Customer shall not be liable for any settlement amounts entered into by xtype without Customer’s prior written approval.
Limitation of Liability. WITH THE EXCEPTION OF A PARTY’S INDEMNIFICATION, DATA PROTECTION, AND CONFIDENTIALITY OBLIGATIONS HEREUNDER, IN NO EVENT SHALL EITHER PARTY, OR ITS LICENSORS OR SUPPLIERS BY VIRTUE OF THIS AGREEMENT, HAVE ANY LIABILITY TO ANY OTHER PARTY FOR ANY LOST PROFITS OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INCIDENTAL, PUNITIVE, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, HOWEVER, CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE) AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT SHALL XTYPE, ITS AFFILIATES OR ITS OR THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, OR SUPPLIERS BE LIABLE TO CUSTOMER FOR MORE THAN THE AMOUNT OF ANY ACTUAL DIRECT DAMAGES UP TO THE AMOUNTS ACTUALLY RECEIVED BY XTYPE UNDER THIS AGREEMENT DURING THE 12 MONTH PERIOD PRECEEDING THE CLAIM, REGARDLESS OF THE CAUSE AND WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE.
17. TERM AND TERMINATION.
- Term of Agreement. This Agreement commences on the Effective Date and continues for the final Subscription Term.
- Termination. Notwithstanding the above, this Agreement may be terminated by xtype, immediately upon written notice to Customer if: (a) Customer fails to make any payment due hereunder within thirty (30) days after receiving written notice from xtype that such payment is delinquent; (b) Customer breaches any material term or condition of this Agreement and fails to cure such breach (if curable) within thirty (30) days after receiving written notice of the breach; (c) an order is made or a resolution is passed for the winding up of Customer, or an order is made for the appointment of an administrator to manage the affairs, business and property of Customer, or such an administrator is appointed, or a receiver is appointed of any of Customer’s assets or undertaking, or circumstances arise which entitle a court or a creditor to appoint a receiver or manager or which entitle a court to make a winding-up order, or Customer takes or suffers any similar or analogous action in consequence of debt, or an arrangement or composition is made by Customer with its creditors or an application to a court for protection from its creditors is made by Customer; (d) Customer, being an individual, is the subject of a bankruptcy petition or order, or dies, or, by reason of illness or incapacity (mental or physical), is incapable of managing his own affairs, or becomes a patient under any mental-health legislation.
- Termination by Customer. This Agreement including any Order Forms may be terminated by Customer immediately upon written notice to xtype if: (a) xtype breaches any material term or condition of this Agreement and fails to cure such breach (if curable) within thirty (30) days after receiving written notice of the breach; (b) an order is made or a resolution is passed for the winding up of xtype, or an order is made for the appointment of an administrator to manage the affairs, business and property of xtype, or such an administrator is appointed, or a receiver is appointed of any of xtype’s assets or undertaking, or circumstances arise which entitle a court or a creditor to appoint a receiver or manager or which entitle a court to make a winding-up order, or xtype takes or suffers any similar or analogous action in consequence of debt, or an arrangement or composition is made by xtype with its creditors or an application to a court for protection from its creditors is made by xtype; (c) xtype, being an individual, is the subject of a bankruptcy petition or order, or dies, or, by reason of illness or incapacity (mental or physical), is incapable of managing his own affairs, or becomes a patient under any mental health legislation. Where Customer terminates under this section 3, then Customer shall be subject to a pro-rata refund of any Fees paid for Subscription Services not received beyond the date of termination.
- Effects of Termination. Termination or expiry of this Agreement shall not affect any rights, remedies, obligations, or liabilities of the Parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry, provided, for the avoidance of doubt, that all other rights and licenses of Customer under this Agreement shall terminate on the termination date.
- Surviving Provisions. The provisions of this Agreement and the rights, duties, and obligations of the Parties hereunder, which by their nature may be reasonably inferred to have been intended to survive termination, cancellation, completion, or expiration of this Agreement will survive and continue as valid and enforceable rights, duties, and obligations. Without limiting the generality of the above, the sections titled “Usage Restrictions”, “Propriety Rights”, “Confidentiality,” “Representations Warranties and Disclaimers,” “Indemnification; Limitation of Liability”, “Surviving Provisions” and “General Provisions” will survive any termination or expiration of this Agreement.
18. GENERAL PROVISIONS.
- Publicity – Unless otherwise specified in the applicable Order Form, xtype may use the Customer’s name, logo, and marks to identify the Customer as a customer of xtype and a user of the relevant Service(s) on xtype’s website and in other marketing materials.
- Construction. In the event of any conflict between the terms of this Agreement and those of any Order Form, the applicable Order Form shall prevail solely with respect to the provisions specified in the conflict. The section and paragraph headings used in this Agreement are inserted for convenience only and will not affect the meaning or interpretation of this Agreement.
- Amendments and Waivers. Neither party may modify this Agreement at any time without the prior written agreement of the other party.
- Sole Agreement. This Agreement and any applicable Order Form executed in connection hereto constitutes the agreement and understanding between the Parties regarding the subject matter hereof and supersedes any prior representations, advertisements, statements, proposals, negotiations, discussions, or agreements regarding the such subject matter. The Parties agree that any terms and conditions in a purchase order, invoice, or similar document proffered by Customer are of no force and effect and are hereby rejected. The Parties hereto have not relied upon any promises, representations, warranties, agreements, covenants, or undertakings other than those expressly set forth or referred to herein.
- Export Compliance. The Subscription Services, other xtype Technology, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. xtype and Customer each represents that it is not named on any U.S. government denied-party list. Customer represents and warrants that it is not located in and will not permit any User to access or use the Subscription Services in a U.S.-embargoed country and is not in violation of any U.S. export law or regulation.
- Anti-Corruption. Neither Party nor any of their Affiliates, nor any director, officer, or employee, nor, to either party’s knowledge, any agent or representative of either party or of any of their respective Affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment or giving of money, property, gifts or anything else of value, directly or indirectly, to any “government official” (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) to influence official action or secure an improper advantage; and Both Parties have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintain and will continue to maintain policies and procedures designed to promote and achieve compliance with such laws and with the representation and warranty contained herein.
Force Majeure. If a Party is prevented, hindered, or delayed in or from performing any of its obligations under this Agreement by a Force Majeure Event (“Affected Party”), the Affected Party shall not be in breach of this Agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly. The corresponding obligations of the other Party will be suspended, and the time for performance of such obligations extended to the same
- extent as those of the Affected Party. The Affected Party shall: (a) as soon as reasonably practicable after the start of the Force Majeure Event notify the other Party of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the Agreement; (b) use all reasonable endeavors to mitigate the effect of the Force Majeure Event on the performance of its obligations; and (c) as soon as reasonably possible after the end of the Force Majeure Event, notify the other Party that the Force Majeure Event has ended and resume performance of its obligations under this Agreement. If the Force Majeure Event prevents, hinders, or delays the Affected Party’s performance of its obligations for a continuous period of more than 90 days, the Party not affected by the Force Majeure Event may terminate this Agreement by giving 30 days written notice to the Affected Party.
- Independent Contractors. xtype and Customer are independent contractors, and this Agreement will not be construed to create a partnership, joint venture, agency, or employment relationship between the Parties hereto. Neither Party nor any of their respective Affiliates is an agent of the other for any purpose or has the authority to bind the other.
- Subcontractors. xtype may, in its sole discretion, use subcontractors to fulfill its obligations under this Agreement, provided that xtype remains responsible for compliance of such subcontractors with the terms of this Agreement.
- Notices. Any notice to be provided or permitted in connection with this Agreement shall be made in writing by registered mail return receipt requested, courier, or email, provided that notices sent to xtype concerning a dispute or an indemnifiable claim (“Legal Notices”) shall be sent to by one party to the other with evidence of receipt, or to any such address as specified by one party to the other in writing from time to time. Legal Notices and billing-related notices shall be sent by xtype to Customer’s email address as provided by the Customer upon registration. All other notices to Customer will be addressed to the relevant Subscription Services contact designated by Customer. Any notice served by post shall be deemed to have been served three days (excluding Fridays, Saturdays, and public holidays in Israel) following the date of posting; or the next day (excluding Fridays, Saturdays, and public holidays in Israel) following transmission by email or facsimile; or if delivered personally, at the time of delivery; and in proving such service it shall be sufficient proof that the envelope containing the notice was properly addressed and posted as a pre-paid letter by registered delivery post.
Governing Law; Jurisdiction. This Agreement shall be governed by and construed in accordance with the domestic laws of the State of
- Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware. The Parties (a) hereby irrevocably and unconditionally submit to the jurisdiction of the courts of New York, New York for the purpose of any suit, action or other proceeding arising out of or based upon this Agreement, (b) agree not to commence any suit, action or other proceeding arising out of or based upon this Agreement except in such courts, and (c) hereby waive, and agree not to assert, by way of motion, as a defense, or otherwise, in any such suit, action or proceeding, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the suit, action or proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeding is improper or that this Agreement or the subject matter hereof may not be enforced in or by such court.
Waiver of Jury Trial: EACH PARTY HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS (INCLUDING NEGLIGENCE), BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THIS SECTION HAS BEEN FULLY DISCUSSED BY EACH OF THE PARTIES HERETO, AND THESE PROVISIONS WILL NOT BE SUBJECT TO ANY EXCEPTIONS. EACH PARTY HERETO HEREBY FURTHER WARRANTS AND REPRESENTS THAT SUCH PARTY HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT SUCH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.
In the event that any action, suit, or other legal proceeding is instituted or commenced by either Party against the other Party arising out of or related to this Agreement, the prevailing Party shall be entitled to reasonable attorney’s fees, costs, and necessary disbursements in addition to any other relief to which such Party may be entitled.
- Class Action Waiver. If permitted by applicable law, each Party waives the right to litigate in court or an arbitration proceeding any dispute as a class action, either as a member of a class or as a representative, or to act as a private attorney general.
- Severability. If one or more provisions of this Agreement are held to be invalid, illegal, or unenforceable under applicable law, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision were limited or modified, consistent with its general intent, to the extent necessary so that it shall be valid, legal and enforceable, or if it shall not be possible to so limit or modify such invalid, illegal or unenforceable provision, this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein, and all other provisions hereof shall be and remain unimpaired and in full force and effect.
- Assignability and Binding Effect. This Agreement shall inure to the benefit of and shall be binding upon, the Parties hereto and their respective successors and assigns. Notwithstanding the foregoing the obligations of either party may not be delegated and either party may not assign, subcontract or otherwise dispose of this Agreement or any of its rights hereunder without the prior written consent of the other, and any such attempted delegation or disposition shall be null and void and without effect; provided, however, that this Agreement may be assigned to a third party in connection with an M&A Event.
- No Third-Party Beneficiary. No provision of this Agreement is intended to, or shall, confer any third-party rights or remedies upon any person other than the Parties hereto.
- Headings. The headings of the sections and subsections of this Agreement are for convenience only and shall not be considered in construing or interpreting any of the terms or provisions hereof.
- Counterparts. This Agreement may be executed in counterparts, none of which need contain the signatures of each of the Parties, each of which shall be deemed an original, but all of which together will constitute one and the same instrument.
19. Support SLA – Response Times.
During the Term of any Subscription Service which is being provided by xtype to Customer under an Order Form, xtype shall provide the maintenance and support Services in accordance with the following service levels (“Service Levels”) described below. Business hours and days shall be the business hours and days of operation of the Customer. The definition of severity level shall be described below in section 19.2.
19.1 Initial Contact Service Level in response to any Customer request for maintenance and support Services shall be responded to by xtype within the following Service Level timescales: –
- Severity 1 Critical – 12 business hours
- Severity 2 High – Next business day
- Severity 3 Medium – 2 business days
- Severity 4 Low – 4 business days
19.2 Severity Classification: –
- 1 Critical – xtype product unavailable. No workaround is available.
- 2 High – Partial product downtime, functionality not available, or significantly degraded performance. No workaround is available.
- 3 Medium – Noncritical loss or impact to xtype or customer application. Workaround is available.
- 4 Low – Other xtype product defects, documentation errors, or another low-priority issue.
19.3 Version Support. All maintenance and support Services shall be subject to the following policy of version support: –
- 1 xtype service portal application – 9 months.
- 2 xtype backend cluster updates are automated and cannot be skipped.
Updated March 2023