User Agreement

EXYDOC END USER LICENSE AGREEMENT

BY USING THE SOFTWARE AND/OR SERVICE, YOU (“CUSTOMER”) AGREE TO BE BOUND BY THE TERMS OF THIS SERVICE AGREEMENT (“AGREEMENT”), SUBJECT TO ANY ORDER FORM FOR THE SOFTWARE AND/OR SERVICE.  

1. DEFINITIONS.

1. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. For purposes of this definition, “control” means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of the subject entity or exclusive management of such entity.

2. “Business Contact Data” means the names, email addresses, phone numbers and all other business-related information of each Party’s personnel, that may be collected or exchanged between the Parties in the ordinary course of maintaining the business relationship, such as contract management, sales and ordering, and business development as further described in Section 13.2 (Use of Business Contact Data).

3. “Customer Personal Data” means Personal Data (defined below) that is owned or controlled by Customer and which Exydoc, a Exydoc Affiliate or subcontractor may process.

4. “Documentation” means the Exydoc documentation shipped with the Products or made available in electronic form to Customer, excluding advertising and marketing materials.

5. “Hardware” means any Exydoc hardware purchased by Customer. 

6. “Order” means the purchase order or other agreed upon legally binding document placed by Customer which specifies the applicable term, quantities and description of the Products, Support Services and Professional Services purchased by Customer from a Exydoc authorized reseller.

7. “Personal Data” means (i) any information relating to an identified or identifiable natural person, and/or (ii) any information that identifies, relates to, describes, or could reasonably be linked, directly or indirectly, with a particular consumer or household. Unless prohibited or specifically governed by applicable Data Protection Laws, Personal Data shall not include information or data that is anonymized, de-identified and/or compiled on a generic basis and which does not name or identify a specific person.

8. “Product(s)” means, collectively, Exydoc Hardware, Software and SaaS Services.

9. “SaaS Services” means a Exydoc cloud-based software-as-a-service offering purchased by Customer as specified in the applicable Order.  

10. “Professional Services” means the implementation, configuration and training services as specified in an applicable Order. Additionally, Professional Services means any data entry or interaction with the Products on behalf of the Customer. 

11. “Software” means, collectively, Exydoc’s software and embedded firmware downloaded or accessed by Customer in object code form, as set out in the applicable Order. Software also includes all Updates, Upgrades, copies and alterations, modifications and derivative works thereof. 

12. “Term” means the period of time from the Effective Date until the end of the applicable license term as set forth on the Order(s), including any renewal thereof.

13. “Updates” means patch releases, “bug” fixes, and maintenance updates for the Software or the SaaS Services. 

14. “Upgrades” means new features included in Software or SaaS Services which Customer may purchase during the Term and which are subject to an additional charge. For clarity, if Customer purchases an Upgrade of Software, the entitlement to use the original Software terminates. 

2. SOFTWARE LICENSE.

2.1 Software License. Subject to Customer’s compliance with the terms and conditions of this Agreement and Customer’s payment of all fees due in the applicable Order, Exydoc grants Customer a limited, non-exclusive, non-sub-licensable, non-transferable (except as may be expressly permitted herein) license to use the Software and Documentation only for Customer’s internal business purposes on Hardware or Exydoc-approved third-party hardware and in accordance with the Documentation. Unless otherwise specified in applicable Product Specific Terms at https://www.Exydoc.com/en/legal, Customer may use the Products for the benefit of its Affiliates, and Affiliates may use the Products for their own benefit, but only in the quantities and capacity as set out in the applicable Order and subject to compliance with all terms of this Agreement. Customer guarantees that each Affiliate will fully perform its obligations hereunder, and Customer is responsible for any breach of this Agreement by its Affiliates.

2.2 Term of License. Software is licensed for the time period set forth in the applicable Order and on a subscription basis, meaning Customer has the right to use the Software or SaaS Services for the period of time set forth in the applicable Order utilizing the quantity of Customer entries required by Customer and any renewals thereof (“Subscription License”). 

2.4 SaaS Services Additional Terms. If Customer acquires SaaS Services, subject to Customer’s compliance with this Agreement and payment of all fees due, xydoc grants Customer the limited, non-exclusive, non-transferable right to access and use the SaaS Services for the Term, solely for Customer’s internal business purposes and for the number of users and/or the capacity specified in the applicable Order. Customer is solely responsible for maintaining the confidentiality of all usernames and passwords required for use of the SaaS Services and for all activities conducted in connection with the use of such passwords or access to the SaaS Services. Exydoc will use commercially reasonable efforts to provide consistent site availability for the SaaS Services during the Term pursuant to the WARRANTIES section of this Agreement (excluding scheduled maintenance and downtime, connectivity problems, Customer actions or misuse, or other matters outside Exydoc’s reasonable control). Exydoc does not warrant or guarantee uninterrupted availability. Exydoc reserves the right to suspend or terminate Customer’s use of the SaaS Services if Exydoc becomes aware that Customer or any of its users use the SaaS Services in violation of this Agreement or any applicable law or regulations. Exydoc may also impose temporary limits on certain features and services or temporarily restrict Customer’s access to parts of the SaaS Services for maintenance, support or system administration purposes without notice or liability. Exydoc agrees to provide commercially reasonable notice under the circumstances of any such suspension before its implementation. Customer is solely responsible for the accuracy, quality, integrity, and legality, of all Customer data stored or uploaded to the SaaS Services. Upon the termination of this Agreement or expiration of the Term, Customer will have no further rights to access the SaaS Services hereunder. For a period of ninety (90) days after such termination or expiration, upon Customer’s prior written request, Exydoc will allow Customer limited access to retrieve any Customer data remaining on the SaaS Services. After such thirty (30) day period, Customer will have no further rights to access the SaaS Services. To the extent the Customer requires additional time after the termination or expiration to retrieve any Customer data remaining on the SaaS Services it may purchase additional time through the applicable channel partner. 

3. USE RESTRICTIONS. Customer will not, nor will Customer encourage or assist others to:

1. Copy, modify, encumber or distribute the Software, SaaS Services or Documentation (except for a reasonable number of copies of the Documentation for internal use);

2. Reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or structure, sequence and organization of the Products or create any derivative works including, without limitation, customization, translation or localization; 

3. Sell, license, sublicense, rent, lease, lend or transfer the Software or SaaS Services or use the Software or SaaS Services for the benefit of any third party, including but not limited to timesharing or service bureau purposes; 

4. Remove or obscure any proprietary notices on the Products or Documentation;

5. Publish or disclose to any third party any technical features, performance or benchmark tests, or comparative or competitive analyses relating to the Software or SaaS Services and Trial Products unless authorized in writing by Exydoc; 

6. Use any software without first purchasing the applicable license (excluding only Trial Products); or

vii. Use the Software or the SaaS Services for any purpose or in any manner not authorized by this Agreement (including, without limitation, for any purpose competitive with Exydoc). 

4. PROPRIETARY RIGHTS. Software, SaaS Services and Documentation are licensed to Customer and not sold. Exydoc and its licensors retain all title, ownership rights, and intellectual property rights in and to the Software, SaaS Services and Documentation, in any form or format, along with all copies, and all tools, routines, programs and other technology used or provided in the provision of Support Services. The Software, SaaS Services and Documentation are protected by copyright and other intellectual property laws and by international treaties. This Agreement does not grant Customer any rights not expressly granted herein. All trademarks used in connection with the Software, Documentation and SaaS Services are owned by Exydoc, its affiliates, licensors and other suppliers, and no license to use any such trademarks is provided hereunder. Customer may elect to provide suggestions, comments for enhancements or functionality, or other feedback to Exydoc with respect to the Products (including Trial Products), Support Services, and Professional Services (“Feedback”). Customer is not required to provide Feedback to Exydoc, but if Customer in its sole discretion provides Feedback, Customer hereby grants Exydoc a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into its products and services any Feedback as it sees fit without obligation or restriction of any kind. 

5. TRIAL PERIOD.  

5.1 Trial Product Use. Exydoc may provide certain Software, SaaS or Hardware products to Customer at no charge specifically for trial purposes (“Trial Products”). Subject to Customer’s compliance with this Section 5 (Trial Products), Exydoc grants Customer a limited, personal, non-exclusive, non-transferable, non-assignable, revocable right to install and use the Trial Products solely for internal, non-commercial evaluation purposes for thirty (90) days from Customer’s receipt of the Trial Products, unless otherwise extended by Exydoc in writing in its sole discretion (“Trial Term”). In the event the Trial Products are not yet generally available and provided to Customer in a beta or other pre-release format, Customer acknowledges, as a condition of its use: (i) such Trial Products are under development and not at the level of performance or compatibility of generally available products; (ii) may not operate correctly, may contain errors, bugs, and design flaws; (iii) may be modified by Exydoc prior to being made generally available; (iv) may not be made available for general release; and (v) do not include Support Services. Customer agrees to use reasonable efforts to notify Exydoc of any bugs or problems in the Trial Products during the Trial Term.

5.2 Restrictions.. EXYDOC, ITS SUPPLIERS, AND LICENSORS SHALL HAVE NO LIABILITY UNDER ANY LEGAL OR EQUITABLE THEORY IN RELATION TO TRIAL PRODUCTS FOR LOSSES, COSTS, OR DAMAGES OF ANY KIND IN EXCESS OF ONE THOUSAND DOLLARS ($1,000). 

6. CONFIDENTIALITY. Customer and Exydoc may disclose Confidential Information to each other during the Term.  “Confidential Information” means all proprietary business and technical information disclosed by one Party (“Disclosing Party”) to the other Party (“Receiving Party”) which is in tangible form and labeled “confidential” or the like, or that reasonably should be understood to be confidential given the circumstances of disclosure and the nature of the information. Confidential Information includes, but is not limited to, the Products, Trial Products, Documentation, strategic roadmaps, product plans, product designs and architecture, technology and technical information, security processes, security audit reviews and business and marketing plans. Confidential Information will not include information that: (i) was already in Receiving Party’s possession without confidentiality obligations; (ii) is rightfully received by Receiving Party without confidentiality obligations; (iii) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; or (iv) is publicly disclosed by the Disclosing Party. The Receiving Party will protect Confidential Information received from the Disclosing Party using the same degree of care as it uses to protect its own similar confidential materials, but in no event using less than reasonable care. The Receiving Party will disclose Confidential Information only to its employees, alliance partners or contractors who have a need to know for purposes of this Agreement and who are under a written obligation of confidentiality no less protective than this Agreement. Confidential Information may be disclosed in response to a subpoena or order of a court or governmental agency, provided however, that if not otherwise prohibited, the Receiving Party will notify the Disclosing Party promptly of such disclosure to enable the Disclosing Party to seek an appropriate protective order. The Parties’ obligations with respect to Customer Personal Data are set forth in Section 7 (Security; Protection of Personal Data) rather than in this Section 6 (Confidentiality). Upon expiration or termination of this Agreement for any reason, the Receiving Party will, upon request, return or destroy the Disclosing Party’s Confidential Information. Notwithstanding the foregoing, the Receiving Party may retain such copies of Disclosing Party’s Confidential Information stored electronically on data archives or back-up systems or to comply with the laws or regulations applicable to the Receiving Party, provided that such copies shall at all times be subject to the terms of this Agreement while in Receiving Party’s possession or control.  

7. SECURITY; PROTECTION OF PERSONAL DATA. During the Term of this Agreement, Exydoc will implement and maintain commercially reasonable administrative, physical and technical safeguards and measures designed to address the security, confidentiality and availability of the Products, Support Services and Professional Services. Customer acknowledges and agrees that a commercially reasonable standard will apply to the extent Exydoc is required to process Customer Personal Data in connection with the SaaS Services, Professional Services and Support Services. Customer must promptly notify Exydoc of any unauthorized use of or access to the Products purchased by Customer. 

8. PROFESSIONAL SERVICES. Customer may place an Order for Professional Services or they may be incorporated into an Order. Professional Services may be performed by Exydoc or sub-contractors acting on Exydoc’s behalf. In regard to Professional Services, Exydoc warrants that: (i) it and each of its employees, consultants and subcontractors, if any, have the necessary knowledge, skills, experience, qualifications and resources to provide and perform the Professional Services; and (ii) the Professional Services will be performed in a professional and workmanlike manner in accordance with industry standards. Notwithstanding the foregoing, in the event Exydoc uses consultants or subcontractors to perform Professional Services, Exydoc shall be responsible for the performance of the Professional Services specified in the Order as though it was performed by a Exydoc employee. 

Exydoc shall own all rights, title and interest in and to any deliverables provided to Customer and all related intellectual property rights (excluding Customer’s Confidential Information), unless otherwise set forth in a mutually agreed upon Statement of Work (“SOW”). Except for those Professional Services with a term specified in an Order or SOW, all training Professional Services must be used within twelve (12) months of the date of the Order, and all other Professional Services must be used within six (6) months of the date of the Order, after which, all unused Professional Services will expire. Orders for Professional Services are not transferable to any other Product or Service. As a condition to Exydoc providing Professional Services hereunder, Customer shall: (a) provide good faith cooperation and access to such information, facilities, and equipment as may be reasonably required in order to provide the Professional Services; and (b) provide such personnel assistance as may be reasonably requested from time to time. If, through no fault or delay by Customer, or any failure by Customer or Customer’s representatives to perform in accordance with this Section 8 (Professional Services), the Professional Services do not conform to the foregoing warranty, and Customer notifies Exydoc within ten (10) days of Exydoc’s completion of the Professional Services, Exydoc will re-perform the non-conforming portion(s) of the Professional Services at no additional cost to Customer.  

9. WARRANTIES AND DISCLAIMER.

9.1 Software Warranty. Exydoc warrants to Customer, for ninety (90) days from the date of delivery (“Software Warranty Period”), the Software will conform in all material respects to the applicable Documentation (“Software Warranty”). Exydoc’s delivery of any Update does not extend the Software Warranty Period applicable to the Software. 

9.2 SaaS Services Warranty. Exydoc warrants to Customer during the Term (“SaaS Services Warranty Period”), the SaaS Services will conform in all material respects to the applicable Documentation (“SaaS Services Warranty”).  

9.3 Uptime Warranty. Exydoc warrants certain uptime percentages pursuant to the SLA Addendum attached as Exhibit 1 to this Agreement.

9.4 Remedy; Exclusions. Exydoc’s sole obligation under the Software Warranty or SaaS Services Warranty (as applicable), and Customer’s exclusive remedy, is to use commercially reasonable efforts to correct the non-conformity during the applicable Software or SaaS Services Warranty Period. If Exydoc is not able to correct the non-conformity in the Software or SaaS Services (as applicable) such that it complies with the applicable Warranty, Exydoc will process a refund of the unused, prepaid fees for such non-conforming Software or SaaS Services via the applicable channel partner. In the event of a refund in accordance with the foregoing, Customer’s right to use the Software or SaaS Services for which the refund was processed terminates. Customer’s obligation is to provide all information reasonably requested to enable Exydoc to cure the deficiencies. The foregoing warranties do not apply to any Software or SaaS Services (as applicable): (i) that are installed, operated, maintained, stored or used improperly, or in any manner not in accordance with the Documentation, this Agreement or Exydoc’s written instructions; (ii) that are repaired, altered or modified other than by Exydoc or its authorized service provider; or (iii) where the issue is caused by any failure of third-party software or cloud services not supplied by Exydoc.  

9.5 Disclaimer of Warranties. EXCEPT AS PROVIDED IN THIS AGREEMENT, AND TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, EXYDOC AND ITS LICENSORS DISCLAIM ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. EXYDOC DOES NOT WARRANT AGAINST LOSS OR INACCURACY OF DATA, THAT THE OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE OR THAT THE PRODUCTS WILL BE COMPATIBLE WITH ANY THIRD-PARTY SOFTWARE OR HARDWARE. EXYDOC, ITS SUPPLIERS AND LICENSORS ARE NOT LIABLE OR RESPONSIBLE FOR ANY WARRANTIES, EXPRESS OR IMPLIED, PROVIDED BY A CHANNEL PARTNER OR OTHER THIRD PARTY. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, TRIAL PRODUCTS ARE PROVIDED AND LICENSED TO CUSTOMER ON AN “AS IS” BASIS, AND ALL WARRANTIES AND INDEMNITIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, ARE EXCLUDED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS.

10. INDEMNIFICATION. 

10.1 Intellectual Property Indemnification. Exydoc agrees to defend or settle, at Exydoc’s option, a third-party claim or cause of action against Customer alleging that the Products infringe or misappropriate a U.S. patent or copyright of such third party (“Claim”) and to pay damages finally awarded against Customer by a court of competent jurisdiction or as agreed to in a settlement. Exydoc’s obligations hereunder do not apply with respect to any Claim that arises out of: (i) any unauthorized use, reproduction or distribution of the Products by Customer or Customer’s designee; (ii) use of the Products in combination with any other software or equipment not specified by the Documentation if such Claim would have been avoided without such combination; (iii) Products that were modified after delivery without Exydoc’s prior written authorization; or (iv) Customer’s continued use of the allegedly infringing Product after Exydoc supplied a modified or replacement non-infringing Product. If any Claim arises, Exydoc may, at its sole option and expense: (a) replace or modify the affected Product to make it non-infringing; (b) procure a license for Customer’s continued use of the affected Product; or if (a) and (b) are not commercially viable (as determined by Exydoc in its sole discretion), accept return of the affected Products and terminate Customer’s rights thereto, in which case Exydoc will process a pro-rated refund for the applicable prepaid unused fees for such Product covering the remainder of the Term via the applicable channel partner. For Life of the Device licensed Software and Hardware, the refund will be based on a straight-line amortization over a three (3) year term beginning on the date of initial delivery of the Software and Hardware. This Section 10.1 (Intellectual Property Indemnity) states Customer’s sole and exclusive remedy, and Exydoc’s sole liability, with respect to infringement of intellectual property rights.  

10.2 SaaS Services Indemnity. Customer agrees to defend and indemnify Exydoc from and against any loss, damage, or cost arising from a third-party claim that Customer data stored or uploaded into the SaaS Services, or Customer’s use of the SaaS Services (i) infringes an intellectual property right or misappropriates a trade secret of a third party; or (ii) violates the AUP or this Agreement. 

10.3 Indemnification Process. As a condition of receiving indemnity as described in Section 10 (Indemnification), the party seeking the indemnity will provide the other party with: (i) prompt written notice of the claim, provided, however, that the failure to give such notice shall not relieve the indemnifying party of its obligations hereunder except to the extent that the indemnifying party is prejudiced by such failure; (ii) complete control over the defense and settlement of the claim (provided that the indemnifying party will not settle any claim without the other party’s prior written permission if the settlement fails to unconditionally release the indemnified party from all liability pertaining to the claim, such permission not to be unreasonably withheld, delayed or conditioned); and (iii) reasonable assistance in connection with the defense and settlement of the claim. 

11. LIMITATION OF LIABILITY.

11.1 Disclaimer of Consequential Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR REVENUE, LOSS OR CORRUPTION OF DATA OR THE COST OF COVER, HOWEVER CAUSED, WHETHER BASED IN CONTRACT, TORT, WARRANTY, NEGLIGENCE OR ANY OTHER THEORY OF LIABILITY, EVEN IF SUCH PARTY HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES. IN SUCH AN EVENT, THIS EXCLUSION WILL NOT APPLY TO THE EXTENT THE EXCLUSION IS PROHIBITED BY LAW. 

11.2 Limitation of Liability. IN NO EVENT WILL EITHER PARTY’S, ITS AFFILIATES’ AND ITS LICENSORS’ TOTAL AND CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL FEES PAID OR TO BE PAID BY CUSTOMER TO EXYDOC (OR TO THE APPLICABLE CHANNEL PARTNER) FOR THE PRODUCTS FOR THE TWELVE (12) MONTHS PRECEDING THE DATE OF THE FIRST EVENT GIVING RISE TO LIABILITY UNDER THIS AGREEMENT. THE FOREGOING LIMITATION DOES NOT LIMIT OR EXCLUDE ANY LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE OR WILLFUL MISCONDUCT.  

11.3 Exclusions. THE LIMITATIONS OF LIABILITY SET FORTH IN SECTION 11.1 (DISCLAIMER OF CONSEQUENTIAL DAMAGES) AND IN SECTION 11.2 (LIMITATION OF LIABILITY) SHALL NOT APPLY TO CLAIMS, DAMAGES, EXPENSES OR LIABILITIES RESULTING FROM EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10 OR A BREACH OF CONFIDENTIALITY OBLIGATIONS UNDER SECTION 6 (CONFIDENTIALITY) BY EITHER PARTY’S PERSONNEL.

12. TERM AND TERMINATION.

12.1 Term; Termination for Cause. This Agreement begins on the Effective Date and continues until the end of the Term. Notwithstanding the foregoing, a Party may terminate this Agreement if the other Party: (i) materially breaches this Agreement and such breach is not cured within thirty (30) days of such Party’s receipt of written notice describing the breach; or (ii) becomes insolvent, admits in writing of its inability to pay its debts as they mature, makes an assignment for the benefit of creditors, becomes subject to control of a trustee, receiver or similar authority, or becomes subject to any bankruptcy or insolvency proceeding.  If Customer fails to pay any Fee when due, Exydoc may, at its sole discretion a) terminate this agreement immediately upon notice to the customer; b) disable access to the Exydoc platform; or c) cease all or a portion of Services. 

12.2 Post-Termination Obligations. Upon expiration or termination of this Agreement, including if Customer does not renew its applicable Subscription License, the license granted hereunder will immediately terminate and Customer will stop using the Software. Customer will uninstall and destroy the Software and Documentation or undertake such actions as to ensure that the Software and Documentation will not be used after the effective date of termination. For clarity, upon termination or expiration, Customer loses entitlement to all Software features; however, Customer data will remain on the Hardware for archival purposes. 

12.3 Surviving Provisions. Upon expiration or termination of this Agreement, the following sections will survive: Definitions, Proprietary Rights, Orders; Fees, Audit, Restrictions, Confidentiality, Security; Protection of Personal Data, Remedy; Exclusions, Disclaimer of Warranties, Indemnification, Limitation of Liability, Post-Termination Obligations, General.

13. GENERAL.

13.1 Independent Contractors. The Parties are independent contractors under this Agreement and nothing herein shall authorize one Party to have, or hold itself out as having, any right or authority to incur any obligation on behalf of the other.  

13.2 Use of Business Contact Data. Each Party consents to the use of its Business Contact Data by the other Party for the purposes of developing and maintaining the business relationship, and each Party will process the other Party’s Business Contact Data consistent with applicable data protection laws and internal policies. Unless otherwise prohibited by applicable data protection laws, the receiving Party may transfer such data to, or access such data from, any country in which such Party or its Affiliates conduct business relating to this Agreement. Each Party will use reasonable and appropriate security measures to protect such Business Contact Data.  

13.3 Assignment. Neither Party may assign its rights and obligations, whether by operation of law or otherwise, without the prior written consent of the other Party, not to be unreasonably withheld. Notwithstanding the foregoing, either Party, in connection with a merger, reorganization, or sale of all or substantially all of the assets or equity of such Party, may assign this Agreement in its entirety to such Party’s successor without the other Party’s consent, provided that in the event that any such assignment by Customer, both Customer and its Assignee execute a mutually acceptable license transfer agreement. This Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.

13.4 Selling or Divesting of Location(s), Division(s), or Operation(s). It is acknowledged that Customer may elect to sell a facility licensed under this Agreement to a third-party unknown as of the Effective Date and that Customer may wish to continue to utilize the Products for the benefit of such facility in order to provide uninterrupted services for such third party. Therefore, it is agreed that for a period of up to twelve (12) months from the date of sale of any facility licensed under this Agreement, Customer may utilize the SaaS Services in order to provide uninterrupted services for the third party involved; provided that (1) the third party is not a competitor or an existing customer of Exydoc, (2) the agreement between Customer and the third party regarding continuation of services contains a provision prohibiting assignment, subcontracting, or any other transfer of such agreement, and (3) Customer or the third party has paid all applicable fees.

13.5 Export Controls and Trade Laws. Customer will comply with all applicable laws and regulations, including the Export Administration Regulations, the International Traffic in Arms Regulations, and economic sanctions programs implemented by the Office of Foreign Assets Control. Without limiting the foregoing, Customer agrees that Customer will not export, re-export, download, or otherwise transmit Confidential Information or the Products: (i) to any country or region subject to a U.S. embargo or comprehensive trade sanctions; (ii) to any individual or entity identified on any U.S. Government restricted party lists (including the Consolidated Sanctions, Specially Designated Nationals, Denied Persons, Entity, or Unverified Lists); or (iii) to any end user with knowledge or reason to know that the Products or Confidential Information will be used for nuclear, chemical, or biological weapons proliferation, or for missile-development purposes.

13.6 Enhancement Data. Exydoc may collect machine data generated by the Software and SaaS Services, together with Customer’s usage metrics (collectively, “Enhancement Data”). Exydoc uses Enhancement Data to operate, manage, debug, improve and secure the Software and SaaS Services and for internal analytical purposes. Enhancement Data that has been de-identified may be used for advertising and marketing purposes. Enhancement Data include, but are not limited to, the amount of data scanned and moved, performance characteristics, and administrative user actions with the Products. For the avoidance of doubt, Customer Personal Data, Customer’s Business Contact Data and backups Customer creates using the Products are not Enhancement Data collected by Exydoc.   

13.7 Third Party Beneficiaries. Notwithstanding the terms of Section 13.5, nothing in this Agreement shall confer, or is intended to confer, on any third party any benefit or the right to enforce any term of this Agreement.

13.8 U.S. Federal Government Users. This Section 13.8 (U.S. Federal Government Users) applies only if Customer is a U.S. Federal Government Customer. The Software, SaaS Services and Documentation are “commercial” computer software and documentation and are licensed in accordance with the rights articulated in applicable U.S. government acquisition regulations (e.g., FAR, DFARs) pertaining to commercial computer software and documentation. U.S. Federal Government customers will not be subject to Exydoc’s applicable expenses associated with the cost of audit specified in Section 6 (Audit) of this Agreement. Disputes will be subject to resolution pursuant to the Contract Disputes Act of 1978. Nothing contained in this Agreement is meant to derogate the rights of the U.S. Department of Justice as identified in 28 U.S.C §516. All other terms remain in effect as written.

13.9 Use of Name. Without the prior written consent of the other Party, neither Party will (i) publicly use the name, logo or other identifying marks of the other Party, or (ii) issue or permit the issuance of any press release or other public statement regarding this Agreement or the Parties’ relationship.

13.10 Anti-corruption. Each Party will comply with all applicable laws relating to anti-corruption or anti-bribery, including but not limited to the U.S. Foreign Corrupt Practices Act, as amended, the UK Bribery Act 2010, and legislation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. Each Party agrees that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of employees, agents, resellers or subcontractors in connection with this Agreement and that each Party will use reasonable efforts to promptly notify the other Party should it learn of any violation of this restriction.

13.11 Severability. In the event that any provision of this Agreement is declared by a court of competent jurisdiction to be illegal, void or unenforceable, such provision will be limited or eliminated to the extent necessary so that the remainder of this Agreement will continue in full force and effect. 

13.12 Nonwaiver. The failure of Customer or Exydoc to enforce any provision of this Agreement will not be construed as a waiver of such provision or of any other provision of this Agreement.

13.13 Force Majeure. Neither Party shall be liable to the other for its failure to perform any of its obligations under this Agreement, during any period in which such performance is delayed due to circumstances beyond its reasonable control, provided that the Party experiencing the delay promptly notifies the other of the delay. Customer may terminate this Agreement and any SOW or Order if a force majeure event continues for more than thirty (30) consecutive days and prevents Exydoc from delivering the Products and Support Services and Exydoc shall refund the pro-rated amount of the prepaid unused portion of the Products and Support Services fees.

13.14 Integration; Order of Precedence. This Agreement constitutes the entire agreement between Customer and Exydoc and supersedes any and all prior agreements or communications between the parties with regard to the subject matter hereof. In the event of any conflict or inconsistency between the terms of the Agreement and the Product Specific Terms, the Product Specific Terms shall prevail. This Agreement may not be amended or modified except by a writing that specifically refers to this Agreement and is signed by an authorized representative of both Customer and Exydoc. The terms of this Agreement shall supersede and control over any conflicting or additional terms and conditions of any purchase order, acknowledgement, confirmation or other document issued by or on behalf of Customer, and such documents are of no force or effect. Notwithstanding any agreement Customer may have previously accepted during the installation of any prior versions of the Products, this Agreement applies to the Software, SaaS Terms and any Updates or Upgrades (except to the extent such Updates or Upgrades are accompanied by new or additional terms, in which case the different terms apply prospectively and do not alter Customer’s or Exydoc’s rights relating to pre-updated Software).

13.15 Ambiguities and Notices. Customer and Exydoc have participated in the review of this Agreement. Any rule of construction to the effect that ambiguities are to be resolved against the drafting Party shall not apply in interpreting this Agreement. The language in this Agreement shall be interpreted as to its fair meaning and not strictly for or against any Party. 

13.16 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the COMMONWEALTH OF PENNSYLVANIA, U.S.A., without applying conflict of law rules. With respect to all disputes and actions arising from or related to this Agreement, the Parties irrevocably consent to exclusive jurisdiction and venue in the state and federal courts located in Dauphin County Pennsylvania. The United Nations Convention of Contracts for the International Sale of Goods (1980) is hereby excluded in its entirety from application to this Agreement. Nothing in this Section 13.16 (Governing Law) will limit or restrict either Party from seeking injunctive or other equitable relief from a court of competent jurisdiction.

13.17 Liability Insurance. Exydoc, at its expense, shall carry a policy or policies of professional and general liability insurance and workers compensation insurance, issued by an insurance carrier, providing coverage in the amount of at least One Million Dollars ($1,000,000) per occurrence and One Million Dollars ($1,000,000) aggregate per year, which insures Exydoc against any act, error or omission of Exydoc, its employees and agents.  In addition, Exydoc, at its expense, shall carry a policy or policies of cyber liability insurance, issued by an insurance carrier, providing coverage in the amount of at least One Million Dollars ($1,000,000) aggregate per year. 

13.18 Electronic Signature. The Parties expressly agree that this Agreement may be signed electronically. In the event of a dispute where the law is unclear as to the treatment of electronic signatures, the U.S. Electronic Signatures in Global and National Commerce Act (“ESIGN”) controls.

13.19    Amendments. This Agreement may not be amended or modified by the Customer except by a writing that specifically refers to this Agreement and is signed by an authorized representative of both Customer and Exydoc. This Agreement may, from time to time, be modified or Amended by Exydoc and notice will be provided to the Customer upon said modification or amendment. Notice of amendment may be provided electronically or tangibly to the Customer. THE FAILURE OF THE CUSTOMER TO REJECT THE MODIFICATION OR AMENDMENT WITHIN A REASONABLE PERIOD OF TIME WILL CONSTITUTE ACCEPTANCE.

EXHIBIT 1

EXYDOC, INC. SAAS SERVICE LEVEL AGREEMENT ADDENDUM

This Exydoc SaaS Service Level Agreement Addendum (“SLA Addendum”) sets out the terms governing Exydoc’s Service Level Agreement for Exydoc’s SaaS Services and forms part of the Exydoc End User License Agreement or equivalent agreement between Customer and Exydoc governing Customer’s use of Exydoc Products (“Agreement”). Capitalized terms not defined herein are as defined in the Agreement.

1.     SAAS SERVICE COMMITMENT.

1.1   During the term of Customer’s SaaS Services subscription under an applicable Order, Exydoc will use commercially reasonable efforts to maintain an uptime percentage of 99.5% per each calendar month (the “Service Commitment”). The Service Commitment does not include Downtime. “Downtime” means a scheduled period of time for maintenance and upgrade activity during which the SaaS Services are not available to Customer. The SaaS Services uptime is calculated as the total number of minutes the SaaS Services are available to Customer in the applicable month divided by the total number of minutes that month, minus Downtime. For clarity, for the purpose of calculating Service Credits, calendar months are calculated based on U.S. Eastern Time Zone. In the event the SaaS Services do not meet the Service Commitment, Customer shall become entitled to the Service Credit specified in the table set out below, after submitting a written claim for such Service Credit as outlined in Section 3, provided that Customer is in compliance with the terms of the Agreement. Provision of a Service Credit by Exydoc is Customer’s sole and exclusive remedy for any failure by Exydoc to meet the Service Commitment.

1.2   The Service Commitment does not apply to: (i) Trial Products; (ii) unavailability caused by any unauthorized action or lack of action when required from Customer, or anyone authorized by Customer, or otherwise resulting from Customer’s failure to follow appropriate security practices; (iii) unavailability that results from the use of services, hardware, or software not provided by Exydoc, including, but not limited to, issues resulting from inadequate bandwidth or related to third-party software or services; and (iv) Customer’s violation of the Agreement, including the AUP. 

2.     SAAS SERVICE CREDITS.

Service Credits shall be calculated as a certain percentage of a month, which will be added to the corresponding Term of the affected SaaS Services application subscribed to under an applicable Order. For example: If the monthly uptime percentage of a SaaS Services application fell to 97.0% during one calendar month of the Term of the applicable Order, subject to Section 2, Customer would be entitled to receive a quarter of a month’s (i.e. 25% or one week) additional subscription of the affected SaaS Services application without any additional fees payable by Customer, to be added to the end of Customer’s then-current affected SaaS Services application subscription. Exydoc shall not in any circumstances be obliged to pay any money or make any refund to the Customer. Service Credits are not transferrable and cannot be applied to any other Product.

3.     CLAIMING A SERVICE CREDIT. In order to receive a Service Credit, Customer must submit a claim by raising a support case with Exydoc’s support team within thirty (30) days after the end of the calendar month during which the Service Commitment was not met, detailing the calendar month for which Customer is claiming the Service Credit together with the dates and times of when the Service Commitment was not met. Exydoc may require Customer to provide further information to support its claim for a Service Credit. If Customer fails to provide such information, Exydoc may reject Customer’s request for a Service Credit. If Exydoc reasonably finds that Customer is eligible for a Service Credit, it will notify Customer of the same within a reasonable time period of receiving all reasonably requested information from Customer. The aggregate maximum number of Service Credits to be issued to Customer for any failure by Exydoc to meet the Service Commitment that occurs during the Term will not exceed the Term of SaaS Services subscription extensions.