CXT Software Suite - End User License Agreement

SOFTWARE LICENSE AGREEMENT



This SOFTWARE LICENSE AGREEMENT (this “Agreement”) by and between CONNEXION TECHNOLOGY, LLC, an Arizona limited liability company (“CXT”) doing business as “CXT Software”, and the customer set forth as any party using the Software (“Customer”).  CXT and Customer are sometimes referred to herein together as the “Parties” and each, individually, as a “Party”.



RECITALS



A.  CXT has developed and operates an industry-leading shipment management platform for logistics needs throughout North America (the “Service”).



B. The Service is accessed and used through (i) CXT’s online, Web-based portal located at www.cxtsoftware.com (the “Site”), and (ii) CXT’s operations and driver applications, which are available for download on Google Play, in the Apple App Store and on the Site (collectively, the “Applications”).   CXT has developed and provides to Customer documentation detailing the functionality and use of the Site, Service, and Applications (the “Documentation”).  The Service, the Site, the Applications, and the Documentation are collectively referred to in this Agreement as the “System”.    



C.    Customer desires to subscribe to and use the Service.



Therefore, the Parties agree as follows with the intent to be legally bound.



AGREEMENT 

  1.  

Subscription to Service.  



Customer hereby subscribes to the Service and purchases the subscription described in this Agreement and in the Software Subscription.  In connection with Customer’s subscription, Customer agrees to perform Customer’s obligations described in this Agreement.  Customer agrees to use, and CXT agrees to provide, the System under the terms and subject to the conditions in this Agreement.  CXT provides support for the Service as set forth in the current CXT Support Agreement (the “Support Agreement”), which Support Agreement may be amended, from time to time, by CXT in its sole and absolute discretion, and is incorporated into and made part of this Agreement.  All references to “this Agreement” include the Software Subscription, the Support Agreement, and the Privacy Policy (as defined below).



  1.  

License Grant; Use of Software.



(a) License.  CXT grants to Customer a non-exclusive, non-transferable, non-assignable, non-sublicensable, revocable, limited right and license to access and use the System during the Term (as defined below), in each case solely for the purposes of facilitating, tracking, and managing delivery of Customer’s packages/shipments in the ordinary course of Customer’s business.  Subject to the limited rights expressly granted hereunder, CXT reserves all right, title and interest in and to the System, including all related intellectual property rights.  No rights are granted to Customer hereunder other than as expressly set forth in this Agreement.   



(b) Customer Responsibilities and Obligations.  



(i) Customer is solely responsible for (A) all activities occurring under Customer’s and Customer’s employees’ and drivers’ accounts; (B) maintaining the confidentiality of Customer’s account and passwords and creating secure passwords; (C) the content of all documents, content, and data submitted by Customer and its employees and drivers to and through the System; (D) setting and modifying Customer’s profile and preferences for the System, and specifying the access rights of those users to the System; and (E) the use of the Service by Customer’s employees and drivers.



(ii) Customer shall (A) ensure that all employees and drivers using the System are properly trained and do not violate any of the term and conditions set forth in this Agreement, (B) prevent unauthorized access to, or use of, the System, and will notify CXT promptly of any unauthorized use Customer becomes aware of; and (C) comply with all applicable local, state, federal and foreign laws, treaties, rules, and regulations in using the System (including, without limitation, all laws, rules, and regulations governing data privacy, international communications, and transmission of technical or personal data) (collectively, “Laws”).



(iii) Customer shall use the System solely for the purposes permitted pursuant to Section 2(a) above.  Customer shall not (A) make the System available to, or otherwise show the System to, any third party; (B) share Customer’s account password and login credentials with any third party; (C) except as expressly authorized in Section 2(a) above, use, or attempt to use, any content obtained through the System for any commercial purpose; (D) send spam or similar unsolicited messages; (E) send or store infringing, obscene, threatening, libelous, defamatory, or otherwise unlawful material; (F) install, send or store viruses or other harmful or malicious code, files, scripts, agents or programs; (G) interfere with or disrupt the integrity or performance of the System or CXT’s sites, servers, or networks; (H) use the system to violate the intellectual property rights of any third party; (I) misrepresent the identity of any user accessing the System; or (J) attempt to gain unauthorized access to CXT’s systems, networks, infrastructure, or the System.



(iv) Customer is solely responsible for securing, providing, maintaining, supporting, upgrading, and replacing all equipment, software, and services necessary to utilize the System (including, without limitation, Internet connectivity, computers, tablets, and smartphones).  CXT shall have no obligation or liability of any kind with respect to such equipment, software or services.



(v) As between Customer and CXT, Customer is the sole and exclusive owner of all Customer Data. As used herein, “Customer Data” means all information, data, and other content uploaded by the Customer to the System.



(c) Ownership of the System.



(i) The System (including, without limitation, the software, technology, and documentation incorporated in and underlying the System) is CXT’s sole and exclusive property.  Subject to the limited rights expressly granted in this Agreement, CXT reserves all right, title and interest in and to the System (including, without limitation, all software, technology, and documentation, as well as all derivative works thereof), including all related intellectual property and proprietary rights (including, without limitation, all copyrights, patent rights, trademark and service mark rights, trade secret rights, and moral rights).  No rights are granted to Customer other than as expressly described in this Agreement.



(ii) CXT is also the sole and exclusive owner of (A) all updates, improvements, enhancements, revisions, modifications, new releases and versions, fixes, patches, and derivative works of the System, (B) all operator and user manuals, training materials, guides, listings, drawings, reports, descriptions, and specifications describing the performance, functionality, operation and use of such applications, and other supporting documentation related to the System, in whatever form recorded, and (C) all integrations, customizations, components, modules, workflows or other work product produced by CXT (whether alone or jointly with Customer) for Customer.  Any of the items described in this Section 2(c)(ii) that are provided by CXT, in CXT’s sole discretion, to Customer will be deemed to be included in the definition of the “System” hereunder and available for use by Customer under the terms and subject to the conditions in this Agreement.



(iii) As used herein, “Intellectual Property” means any and all discoveries, improvements, ideas, concepts, creative works, processes, methods, formulas, techniques, know-how, designs, works of authorship, trade secrets, copyrights, patent rights, trademarks, service marks, and any other intellectual property that relates to, or is used to develop or improve, the System.   



Any Intellectual Property (A) made, conceived, developed, or reduced to practice, or caused to be made, conceived, developed, or reduced to practice, by Customer, alone or in conjunction with others, during the Term and (B) disclosed to CXT (whether orally, in writing, electronically or otherwise) (“System-Related IP”) will be deemed to have been made or developed by Customer solely for CXT’s benefit, will be held in trust for CXT’s exclusive use and benefit, and will be CXT’s sole and exclusive property.  Customer will not, either during the Term of this Agreement or at any time thereafter, use or disclose to any party System-Related IP.  Customer agrees to assign, and does hereby assign, to CXT all right, title, and interest in and to any System-Related IP, including, without limitation, any “moral” rights which Customer may have in the System-Related IP under any copyright law or other similar law.  Customer also agrees, during the Term of this Agreement and at any time thereafter, at CXT’s request and expense but without further consideration, to review, execute, acknowledge, and deliver any and all papers necessary to secure legal protection for System-Related IP in any country in the world.  Without limiting the generality of the foregoing, CXT may, in its sole discretion, incorporate the System-Related IP into the System.



(iv) Customer expressly agrees not to (and will not authorize any third party to): (A) license, sublicense, modify, copy, reproduce, redistribute, republish, rent, loan, lease, sell, resell, assign, distribute, grant a security interest in, transfer any right to, commercially exploit, create derivative works (including, without limitation, improvements, enhancements, revisions or modifications) based on, or infringe or violate, CXT’s intellectual property or other rights in, the System; (B) decompile, disassemble, translate, reverse engineer or otherwise attempt to identify, reconstruct, derive or discover the source code (or the underlying ideas, user interface techniques, algorithms, structure or organization) of the System; (C) remove or alter any identification, copyright, trademark, patent, or other proprietary notices, legends, symbols, or labels appearing in the System; (D) directly or indirectly circumvent or violate the technical or security restrictions of the System; (E) publicly disseminate performance information about or analysis of the System; (F) access the System in order to (1) build a competitive product or service, or (2) copy any ideas, features, functions or graphics of the System; (E) use the System for any purpose other than as expressly authorized herein; (G) take any action that would cause any part of the System to be placed in the public domain; or (H) challenge the validity of the copyright or any other rights of CXT to the System or title or interest thereto.



(v) Customer warrants that it owns or has sufficient legal right to the intellectual property rights in its content and that its content (including, without limitation, any use of its content by CXT as described in this Agreement), does not violate applicable Laws or the rights of any third party. Customer grants CXT a worldwide, royalty-free, non-exclusive, sublicensable right during the Term to use, reproduce, distribute, publicly perform, publicly display, transfer, transmit, distribute, and publish Customer’s content and subsequent versions thereof; and to make and/or have made, and to practice any method embodying your content for purposes of delivering the Service and administering the System.  This license will apply to the distribution and the storage of Customer’s content in any form, medium, or technology now known or later developed



(vi) Provided that CXT does not personally identify Customer, Customer hereby grants CXT the right to use the data generated, in aggregated form, from Customer’s use of the System to maintain, support, and improve the System, and for any other legal purpose.



(d) Modification of the System.  CXT shall be entitled to modify, change, and upgrade the functionality, features, and capabilities of the System and the underlying technical infrastructure, in its sole and absolute discretion. 



  1. Privacy, Security and Data Breach Policies

.  



(a) Privacy Policy. All of the information that CXT collects from Customer is subject to CXT’s privacy policy (the “Privacy Policy”) and applicable privacy laws. Go to https://cxtsoftware.com/privacy-policy/ to see CXT’s full Privacy Policy. The Privacy Policy may be amended, from time to time, by CXT in its sole and absolute discretion, and is incorporated into and made  part of this Agreement.

(b) Security Policy. CXT will employ security measures in accordance with CXT’s security policy (as amended from time to time, the “Security Policy”).  The Security Policy may be amended, from time to time, by CXT in its sole and absolute discretion, and is incorporated into and made  part of this Agreement.

(c) Data Breach Policy. CXT maintains a data breach policy in accordance with the criteria set forth in (the “Data Breach Policy”) and shall implement the procedures required under such data breach plan on the occurrence of a data breach.   The Data Breach Policy may be amended, from time to time, by CXT in its sole and absolute discretion, and is incorporated into and made  part of this Agreement.

 

 

  1.  

Fees.



(a) Fees.  CXT will provide Customer with access to and use of the System for the fees described in the Software Subscription, and Customer agrees to pay such fees.  All fees paid to CXT are non-refundable.  CXT reserves the right to adjust the fees at any time at CXT’s sole and absolute discretion upon at least thirty (30) days’ prior written notice to Customer.



(b) Late Fees; Taxes.  CXT may charge interest on all overdue fees at a rate equal to one and one-half percent (1.5%) per month (or, if lower, the maximum allowable by applicable Laws) on the unpaid amount until such amounts are paid.  Customer will be solely responsible for, and will pay, any sales, use, transaction privilege, gross receipts, goods and services, value-added, and personal property taxes, any other taxes and levies, and any interest and penalties related to the foregoing (other than taxes based on CXT’s income) that are imposed by any governmental authority in connection with this Agreement.  



(c) Suspension.   If Customer fails to pay, when due, any fees, late fees, or other charges due to CXT under this Agreement and Customer fails to cure such payment breach within twenty (20) days after written notice from CXT thereof, CXT may, in CXT’s sole and absolute discretion and upon written notice to Customer, immediately suspend Customer’s use of the System. Customer expressly acknowledges and agrees that CXT will have no liability to Customer whatsoever if CXT elects to suspend Customer’s use of the System (even if CXT has been advised of the possibility of damages (which include, but are not limited to, damages for injury to person or property, loss of revenue or profits, business interruption, loss of goodwill, use or loss of data, and/or the claims of third parties)).



  1.  

              Term and Termination



(a) Term.  

The term of Customer’s subscription will start on the Effective Date and will continue until terminated pursuant to Section 5(b) below (the “Term”).

 

(b) Termination.   

This Agreement may be terminated pursuant to any of the following provisions:

 

(i) Upon Notice.  Customer may terminate this Agreement upon thirty (30) days prior written notice to CXT.  CXT may terminate this Agreement upon one hundred eighty (180) days prior written notice to Customer.

 

(ii) Insolvency/Bankruptcy. If Customer shall: (A) be unable to pay or admit in writing its inability to pay its debts as they mature; (B) make a general assignment for the benefit of creditors; (C) apply for or consent to the appointment of a receiver, trustee or liquidator of all or a substantial part of its assets; (D) file a petition or be the subject of an involuntary petition in bankruptcy or for reorganization or for an arrangement pursuant to a bankruptcy act or insolvency which petition is not dismissed within ninety (90) days from such filing; or (E) be adjudicated as bankrupt or insolvent, then CXT may terminate this Agreement effective immediately upon written notice to Customer.

 

(iii) Default of Certain Customer Obligations.  If Customer breaches any of its obligations under Sections 2(b), 2(c), 4, or 10(a), CXT may terminate this Agreement effective immediately upon written notice to Customer.



(c)    Effect of Termination. 



(i) When this Agreement is terminated, (A) Customer will immediately stop using the System, (B) Customer’s license to the System will immediately terminate, (C) CXT will immediately cease provision of the Service to the Customer, and (D) Customer will pay CXT, within three (3) days following the termination date, all fees and other charges which accrued prior to such termination date but remain unpaid.  Customer expressly acknowledges and agrees that CXT will have no liability to Customer whatsoever with respect to the termination of Customer’s use of the System (even if CXT has been advised of the possibility of damages (which include, but are not limited to, damages for injury to person or property, loss of revenue or profits, business interruption, loss of goodwill, use or loss of data, and/or the claims of third parties)).



(ii) Customer will also pay any damages, losses, liabilities, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) that arise out of or in connection with any breach of this Agreement occurring prior to or after the expiration or termination hereof.



(iii) Once Customer paid all amounts owed to CXT, CXT will then delete all of Customer’s user-generated data (i.e., data uploaded by Customer to the System), which data will not include CXT’s metadata.



  1.  

Representations and Warranties.  



Customer represents and warrants to, and covenants with, CXT as follows:



(a) Customer has the requisite power and authority to execute, deliver, and perform Customer’s obligations under this Agreement.



(b) Customer’s execution, delivery, and performance of this Agreement, and the consummation of the transactions described in this Agreement, have been authorized by all necessary actions on Customer’s part.  This Agreement is valid and binding on Customer, enforceable against Customer in accordance with its terms.



(c) The execution, delivery and performance of this Agreement by Customer do not and will not (i) conflict with, or constitute a default (now or in the future) of any agreement, instrument or other understanding to which Customer are bound, or (ii) result in a violation of any Laws, judgment, injunction, decree or other restriction of any court or governmental authority to which Customer is subject.



(d) No consent, approval, order or authorization of, or registration, declaration or filing with, any government authority, body, or any other party is required by Customer to execute, deliver, and perform under this Agreement. 



  1.  

Warranties: Disclaimers.  



(a) CXT warrants that, during the Term, (i) the Service will materially conform to the latest Documentation provided by CXT. In the event the Service does not materially conform to the Documentation and Customer promptly notifies CXT, CXT will modify the Service and/or the Documentation so that the Service materially conforms to the documentation; provided, that such remedy is Customer’s exclusive remedy for any such non-conformance.  If CXT fails to modify the Service and/or the Documentation, then Customer can deliver a notice of termination to CXT pursuant to Section 5(b)(i) above.



(b) EXCEPT AS EXPRESSLY SET FORTH IN SECTIONS 7(a) AND 7(b) ABOVE, THE SYSTEM IS PROVIDED ON AN "AS IS" BASIS. CXT MAKES NO WARRANTY, REPRESENTATION, GUARANTY OR CONDITION OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, SECURITY, ACCURACY, COMPLETENESS, TITLE OR NON-INFRINGEMENT, OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE), WITH RESPECT TO THE SYSTEM OR ANY OF THE CONTENT, SERVICES, OR PRODUCTS PROVIDED IN CONNECTION THEREWITH.  CXT DOES NOT REPRESENT, WARRANT OR GUARANTY THAT (a) THE SYSTEM WILL BE AVAILABLE, 100% SECURE, TIMELY, UNINTERRUPTED, OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER APPLICATION, SOFTWARE, HARDWARE, SERVICE OR DATA; (b) THE SYSTEM WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (c) ANY DATA STORED USING THE SYSTEM WILL BE ACCURATE, RELIABLE, OR SECURE; (d) ERRORS OR DEFECTS IN THE SYSTEM WILL BE CORRECTED; OR (e) THE SYSTEM OR THE THIRD PARTY PRODUCTS OR SERVICES USED BY CXT IN CONNECTION WITH THE SYSTEM ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. CXT DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES OR GUARANTIES OF ANY KIND, AND WILL HAVE NO RESPONSIBILITY WHATSOEVER, WITH RESPECT TO ANY THIRD PARTY PRODUCTS, SERVICES, CONTENT OR OTHER MATERIALS OFFERED, ACCESSED, ENCOUNTERED OR OBTAINED BY CUSTOMER THROUGH THE USE OF THE SYSTEM.



  1.  

Limitation of Liability.  



(a) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CXT WILL NOT BE LIABLE TO CUSTOMER OR ANY OTHER THIRD PARTY FOR ANY ACTUAL, DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR MULTIPLE DAMAGES IN CONNECTION WITH OR ARISING OUT OF (i) THE SYSTEM, (ii) ANY THIRD PARTY PRODUCTS, SERVICES, CONTENT OR OTHER MATERIALS OFFERED, ACCESSED, ENCOUNTERED OR OBTAINED ON, WITH, OR THROUGH THE USE OF THE SYSTEM, OR (ii) THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, FOR CXT’S PERFORMANCE OR THE FAILURE OF SUCH PERFORMANCE HEREUNDER, OR FOR ANY BREACH BY CXT HEREOF), REGARDLESS OF THE LEGAL THEORY ON WHICH SUCH CLAIM IS BASED (WHETHER CONTRACT, TORT OR OTHERWISE) AND EVEN IF CXT IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR INJURY TO PERSON OR PROPERTY, LOSS OF REVENUE OR PROFITS, BUSINESS INTERRUPTION, LOSS OF GOODWILL, USE OR LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, SYSTEM DOWNTIME, AND THE CLAIMS OF THIRD PARTIES). IF ANY JURISDICTION DOES NOT ALLOW EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR ACTUAL, DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR MULTIPLE DAMAGES, CXT’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW AND IN NO EVENT WILL SUCH LIABILITY EXCEED FIVE HUNDRED DOLLARS ($500.00).



(b) CUSTOMER EXPRESSLY AGREES THAT CUSTOMER’S SOLE AND EXCLUSIVE REMEDY UNDER THIS AGREEMENT FOR CXT’S PERFORMANCE OR THE FAILURE OF SUCH PERFORMANCE HEREUNDER, OR FOR ANY BREACH BY CXT HEREOF, WILL BE TO TERMINATE THIS AGREEMENT PURSUANT TO SECTION 5(b)(i) ABOVE.  CUSTOMER ACCEPTS THE RESTRICTIONS ON CUSTOMER’S RIGHT TO RECOVER ADDITIONAL DAMAGES AS PART OF CUSTOMER’S BARGAIN WITH CXT, AND CUSTOMER UNDERSTANDS AND ACKNOWLEDGES THAT, WITHOUT SUCH RESTRICTIONS, THE FEES WOULD BE HIGHER.



  1.  

Indemnification.  



Customer will defend, indemnify and hold harmless CXT and CXT’s affiliates, officers, directors, members, managers, equity holders, employees, insurers, legal counsel, representatives, and agents (each an “Indemnitee”) from and against any and all claims (including, without limitation, any investigation, action or other proceeding, whether instituted by a third party against an Indemnitee or by an Indemnitee for the purpose of enforcing its rights hereunder), damages, losses, liabilities, costs and expenses (including, without limitation, attorneys' fees and court costs) that constitute, or arise out of or in connection with (a) any breach by Customer of Customer’s representations, warranties, agreements and covenants set forth in this Agreement; or (b) Customer’s use or misuse of the System.

 

10. Miscellaneous



(a) Confidentiality.



(i) Except as provided in Section 10(a)(ii) below, during the Term of this Agreement and at all times thereafter, each Party will (A) keep confidential and not divulge, furnish or make accessible to any third party any Confidential Information of the other Party, and (B) use the Confidential Information of the other Party (I) in the case of Customer, solely for purposes of utilizing the System during  the Term and (II) in the case of CXT, solely for purposes of performing its obligations under this Agreement, in each case pursuant to the terms and conditions set forth in this Agreement and not for the benefit of any third party.



(ii) Each Party shall be permitted to disclose Confidential Information of the other Party to the extent, but only to the extent, (A) such other Party provides the first Party with express prior written consent to such disclosure; or (B) required by law; provided, that prior to making any disclosure of Confidential Information required by law (whether pursuant to a deposition, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand, or other similar process), the receiving Party must notify the disclosing Party of the receiving Party’s intent to make such disclosure, so that the disclosing Party may seek a protective order or other appropriate remedy and may participate with the receiving Party in determining the amount and type of Confidential Information, if any, which must be disclosed in order to comply with applicable law.



(iii) Promptly after the expiration or termination of this Agreement or upon a Party’s request at any time, a receiving Party shall return to the disclosing Party, or confirm in writing the destruction of, any Confidential Information of the disclosing Party which is in tangible form and which is then in the receiving Party’s possession. 



As used herein, “Confidential Information” of CXT means all information concerning or related to CXT’s business, operations, financial condition or prospects (whether prepared by CXT, CXT’s affiliates or advisors, or otherwise, and regardless of the form in which such information appears and whether or not such information has been reduced to a tangible form), and shall specifically include (without limitation): (A) the terms of this Agreement (including, without limitation, all System pricing information), (B) all information regarding CXT’s members, managers, officers, directors, employees, equity holders, customers, sales representatives, dealers, and licensees, in each case whether past, present or prospective; (C) all of CXT’s Intellectual Property, software, inventions, discoveries, trade secrets, processes, techniques, methods, formulae, ideas and know-how (including, without limitation, the System); (D) all of CXT’s financial statements, audit reports, budgets and business plans and forecasts; and (E) all analyses, compilations, forecasts, data studies, notes, translations, memoranda, or other documents or materials, prepared by or for Customer containing, based on, generated or derived from, in whole or in part, any Confidential Information.  “Confidential Information” of Customer means the Customer Data.

 

(b) Customer Reference.  During the Term and at all times thereafter, CXT has the right to (i) reference Customer as a customer (or former customer) of CXT in all advertising, marketing and promotional materials designed to promote CXT and its products and services anywhere in the world (with such reference to include Customer’s name, logo, and any quotes provided by Customer), (ii) distribute a public announcement indicating that Customer has selected CXT’s System (which announcement will include any quotes provided by Customer), and (iii) provide Customer as a reference for future potential customers of CXT.  Customer hereby grants to CXT a non-exclusive, royalty-free, paid-up, perpetual, worldwide, assignable, sublicensable license to use Customer’s name, logo and any quotes provided by Customer in CXT’s advertising, marketing and promotional materials as set forth above.  Customer agrees that no monetary or other consideration shall be due from CXT for the rights granted or the uses described in this Section 10(b). Following the Term, Customer may request that CXT remove references to Customer as a former customer and CXT agrees, upon receipt of such request, to delete such references.



(c) Entire Agreement; Amendment.  This Agreement (including, without limitation, the Software Subscription, the Support Agreement, and the Privacy Policy) constitutes the entire agreement of the Parties with respect to the transactions contemplated hereby and supersedes all prior and contemporaneous written and oral agreements, representations and communications between the Parties relating to such transactions.  Except as expressly set forth herein, this Agreement may be amended, supplemented, or otherwise modified only in a writing signed by both of the Parties.



(d) Equitable Relief.  Customer acknowledge and agrees that CXT would be irreparably damaged in the event that any of the provisions of Sections 2(b), 2(c), 5(c), and 10(a) are not performed by Customer in accordance with their specific terms or are otherwise breached, and that money damages would not be a sufficient remedy for such breach.  Accordingly, Customer agrees that CXT will be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach, without any requirement to post bond or other security or to prove actual damage or harm.   Such remedies shall not be deemed to be the exclusive remedies for any such breach but shall be in addition to all other remedies available at law or in equity. 



(e) Expenses.  Except as may otherwise be specifically provided in this Agreement, each Party is responsible for any expenses incurred in connection with the negotiation, preparation, execution, delivery, and performance of this Agreement.



(f) Force Majeure.  CXT shall not be liable to Customer for any delay in or failure of CXT’s performance under this Agreement (including, without limitation, CXT’s failure to make available the System or any component thereof) resulting from any act of God, fire, flood, explosion or other natural disaster, actions or impositions by Federal, state or local authorities, strike, labor dispute, vandalism, riot, commotion, act of public enemies, blockage or embargo or any other cause beyond CXT’s reasonable control (“Force Majeure”).  Upon the occurrence of any such event that results in, or will result in, a delay or failure to perform, CXT shall be relieved from fulfilling CXT’s obligations under this Agreement during the period of such Force Majeure event.



(g) Governing Law; Consent to Jurisdiction.  This Agreement is governed by, and shall be construed and enforced in accordance with, the laws of the State of Arizona, without giving effect to any conflict of laws rules, and each Party irrevocably submits to the exclusive jurisdiction of the federal and state courts located in Phoenix, Arizona for the purposes of any action or proceeding arising out of or relating to this Agreement.  Each Party hereby consents to such jurisdiction and agrees that venue shall lie in the state or federal courts in Phoenix, Arizona with respect to any claim or cause of action arising under or relating to this Agreement.  Each Party hereby waives any objection based on forum non conveniens and waives any objection to venue of any action instituted under this Agreement.  If any legal action or any arbitration or other proceeding is brought in connection with this Agreement, the prevailing Party shall be entitled to recover reasonable attorneys’ fees, accounting fees, and other costs incurred in that action or proceeding, in addition to any other relief to which it may be entitled.  The phrase “prevailing party” means the party who is determined in the proceeding to have prevailed or who prevails by dismissal, default, judgment, or otherwise.  EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. 



(h) Non-Disparagement.  During the Term of this Agreement, Customer agrees that Customer will not make any statements (or cause or encourage others to make any statements), written or verbal, that defame or disparage CXT or the System. 



(i) Notices.  Any notice, demand or request required or permitted under this Agreement shall be in writing and deemed delivered (i) when delivered personally (including by recognized national courier), (ii) five (5) business days after deposited in the U.S. mail, first class mail, registered or certified, with postage prepaid; or (iii) one (1) business day after sent via email.  Notices shall be addressed to the mailing address and email address set forth in the Software Subscription or such other addresses as a Party provides to the other Party.



(j) Severability.  Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining portions hereof or affecting the validity or enforceability of such provision in any other jurisdiction.



(k) Successors and Assigns.  Customer may not assign Customer’s rights or delegate or cause to be assumed Customer’s obligations hereunder without CXT’s prior written consent (which consent may be withheld in CXT’s sole and absolute consent).  Any attempted assignment, delegation or assumption not in accordance with this Section 10(k) shall be null and void and of no force or effect whatsoever.  The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and permitted assigns of the Parties.



(l) Survival.  The provisions of Sections 2(b)-(d), 4, 5(c), 6-10 and the portions of the Software Subscription referenced therein will survive any termination or expiration of this Agreement.


(m)Waivers.  The due performance or observance by the Parties of their respective obligations under this Agreement shall not be waived, and the rights and remedies of the Parties shall not be affected, by any course of dealing or performance or by any delay or failure of any Party in exercising any such right or remedy.  The due performance or observance by a Party of any of its obligations under this Agreement may be waived only by a writing signed by the Party against whom enforcement of such waiver is sought.