Cox Edge Beta Service Agreement for Consumers

For Business Cox Edge Beta Service Agreements, click here.

Please read these Cox Edge Beta Service Terms, which, together with the other documents described herein, constitute a binding agreement (the “Agreement”) between 1898 Ventures, LLC (“Cox” or “We”) and you (or if you are agreeing to these Service Terms on behalf of a business entity, such as a corporation or limited liability company, then that entity) (“Customer” or “You”). Cox and Customer are each referred to herein individually as a “Party” and together as the “Parties”. The Agreement includes the Cox Edge Privacy Notice, located at https://www.cox.com/aboutus/policies/edge-privacy-notice.html and the Cox Edge Acceptable Use Policy, located at https://www.cox.com/aboutus/policies/edge-acceptable-use-policy.html (“AUP”), which are incorporated into this Agreement by this reference.  The Agreement governs Customer’s and Authorized Users’ access to and use of the Cox Edge (the “Platform”), including any services and functionality related thereto, (the “Platform Services”), and the implementation and consulting services related to the Platform and Platform Services (the “Professional Services”).

Only the Platform, Platform Services and Professional Services for testing purposes (“Beta Services”) may be accessed under this Agreement. Without limiting anything other provision contained herein, the Beta Services are provided on an “as is” and “where available” basis. Cox may not provide standard technical support for and does not offer any warranties for the Beta Services. Cox may change or discontinue any Beta Service at any time without notice. Cox may also choose not to make a Beta Service generally commercially available. You may provide Cox with information relating to Customer’s access, use, testing, or evaluation of Beta Services, including observations or information regarding the performance, features, and functionality of Beta Services (“Test Observations”). Cox will own and may use and evaluate all Test Observations for its own purposes. Customer shall not use any Test Observations except for Your internal evaluation purposes of any Beta Service.

By accessing the Platform and/or registering to receive access to the Platform Services and/or Professional Services, You acknowledge that you have read and understood this Agreement and that You accept and agree to be bound by the Agreement in full. If You do not agree to this Agreement, do not access the Platform or use any portion of the Platform Services and/or Professional Services. The use of an electronic signature process to accept and sign this Agreement, such as your indication of acceptance of this Agreement by a click-through or click-wrap process presented on a Cox website, shall constitute effective execution and delivery of this Agreement.

In consideration of the premises and mutual promises contained in the Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Customer and Cox agree as follows:

1. DEFINITIONS

1.1 "Affiliate" means any entity that directly or indirectly controls or is controlled by, or is under direct or indirect common control with, Cox.

1.2 "Cox Portal" means the means the online console(s) or dashboard provided by Cox to Customer for administering the Platform, Platform Services, and Professional Services.

1.3 "Customer Application" means a software program that Customer creates or hosts using the Platform and/or Platform Services that has material value independent of the Platform, Platform Services and/or Professional Services.

1.4 "Customer Data" means all data or information submitted through the Cox Portal and Platform by Customer or its Authorized Users in connection with the Agreement including, without limitation, Professional Services Data.

1.5 "Deliverables" means the work product, if any, provided to Customer by Cox pursuant to the Professional Services.

1.6 "Fees" means the amount payable from Customer to Cox.

1.7 "High Risk Use" means activities where the use or failure of the Platform or Platform Services would reasonably be expected to lead to death, personal injury, or environmental damage (such as the creation or operation of nuclear facilities, air traffic control, life support systems, or weaponry).

1.8 "Laws" means all applicable laws, statutes, rules, regulations, and orders, whether foreign, domestic, or international, by any governmental authority as in effect from time to time.

1.9 "Non-Cox Product" means any third-party-branded software, data, service, website or product, unless incorporated by Cox in the Platform, Platform Service(s) or Professional Services.

1.10 "Professional Services Data" means all data, including all text, sound, video, image files or software, that are provided to Cox, by or on behalf of a Customer (or that Customer authorizes Cox to obtain from the Platform or a Platform Service) or otherwise obtained or processed by or on behalf of Cox through an engagement with Cox to obtain Professional Services. Professional Services Data includes Support Data.

1.11 "Sensitive Personal Information" means (a) personal identifiers such as social security number, passport number, driver’s license number, tax numbers  or other government-issued identification numbers, date and place of birth, mother‘s maiden name, genetic biometric records or any similar identifier (or any portion thereof); (b) financial information such as banking account numbers; (c) account, including email account, passwords or other credentials or (d) any information that, if compromised, creates notice obligations under state security breach reporting laws.

1.12 "SOW" means the written agreement specifying, without limitation, the scope, objective, and time frame of the Professional Services that Cox and/or its subcontractors will perform for Customer.

1.13 "Support Data" means all data, including all text, sound, video, image files, or software, that are provided to Cox by or on behalf of Customer (or that Customer authorizes Cox to obtain from the Platform) through an engagement with Cox to obtain technical support for the Platform and Platform Services covered under this Agreement.

2. TERM AND SURVIVAL

Unless otherwise agreed by the Parties in writing, the term of the Agreement (the “Term”) commences upon Customer’s acceptance of this Agreement, the method for which is described above, and will continue until terminated for any reason or it expires in accordance with this Agreement. Certain terms and conditions of the Agreement will survive the end of the Term, including Sections 5, 6, 8, 10 and 12 of these Service Terms and any terms identified in any other document that makes up the Agreement as surviving the end of the Term.

3. ACCESS TO THE PLATFORM AND SERVICES

3.1 ACCESS AND USE
(a)  During the Term, Customer will have the right, and the right to permit Customer’s employees and other personnel designated by Customer as well as Customer’s affiliates and such affiliates’ employees and other personnel designated by Customer or its affiliate (collectively, the “Authorized Users”), to access and use the Platform and Cox Portal, integrate the Platform Services into any Customer Application in accordance with the terms and conditions of the Agreement and to purchase Professional Services. Customer is liable for ensuring all Authorized Users’ compliance with the terms of this Agreement and Customer will be liable to Cox for the acts and omissions of the Authorized Users and any and all activity on the Platform arising from use of an Authorized User’s login credentials. Customer must create an account to access the Cox Portal and Platform and use the Platform Services and is responsible for the information it provides to create the account, including but not limited to login credentials. Customer shall, and shall ensure that all Authorized Users, provide information on the Cox Portal that is accurate, complete, and not misleading. Cox shall have no responsibility for providing Customer with multiple accounts. Customer and the Authorized Users are entirely and fully responsible for maintaining the confidentiality of the login credentials of the Authorized Users, and  preventing unauthorized use of the login credentials. Customer shall not allow multiple individuals to share one common login credential.   Cox will assign each Authorized User a unique user identification name and password for access to and use of the Platform.  Customer is solely responsible for all activities that occur under an Authorized User’s account, and will promptly notify Cox at support@coxedge.com upon becoming aware of any unauthorized use of login credentials, password issues, data breach, Authorized User complaint(s), loss of Customer Data or intellectual property or privacy claims. Customer acknowledges and agrees that Cox has no obligation or liability to Customer or any Authorized User for the Authorized Users’ usage of the Platform, Platform Services and/or Professional Services.  By using the Platform, Platform Services and/or Professional Services, an Authorized User may not bring any action against Cox in relation to the Platform or Platform Services. Customer agrees to hold harmless and indemnify Cox from and against any claim by an Authorized User, third party, and/or regulatory authority in connection with the use of the Platform by Authorized User(s). Customer shall pay any resulting judgment, or settlement, and all costs, including reasonable attorney’s fees, and expenses related thereto.

(b)  From time to time, Cox may apply upgrades, patches, bug fixes, or other maintenance to the Platform and Platform Services (“Maintenance”). Cox will use reasonable efforts to provide Customer with prior notice of any scheduled Maintenance (except for emergency Maintenance), and Customer shall comply with any Cox Maintenance requirements. Cox may provide the notice required under this Section 3.1(b) to Customer through any reasonable means including, without limitation, by providing notice through the Cox Portal or email.

(c)  In addition to Maintenance, Cox may make fixes, enhancements, or modifications to the Platform and any Platform Service(s), or any part thereof, or add new features or remove features, from time to time. Cox may, at Cox’s sole discretion, inform Customer, such as by posting a notice in the Cox Portal, if Cox makes a material change to the Platform and Platform Services that has a material impact on Customer's use of the Platform and/or Platform Services. When Cox introduces updates or modifications that are new (i.e., that were not previously included with Customer’s subscription to the Platform or Platform Services), Cox may provide additional terms, pricing or make updates to this Agreement that apply to Customer’s use of those new features, modifications or updates.

3.2 Professional Services
(a)  The scope of Professional Services to be performed by Cox shall be limited to those specified in the applicable SOW. Customer may not request any change to the Professional Services, including to the personnel assigned by Cox to deliver the Professional Services, except as Cox may, but shall not be required to agree upon in writing.   Cox may subcontract or delegate all or any portion of providing the Platform Services to any third parties, entities, and/or individuals without Customer's prior consent.

(b)  Customer will provide reasonable and timely cooperation in connection with Cox’s provision of the Professional Services. Cox will not be liable for a delay caused by Customer’s failure to provide Cox with information, materials, consents or access to Customer Professional Services Data, facilities, networks or systems required for Cox to perform the Professional Services (“Customer Resources”). Cox shall have no liability, and shall not be responsible for the content, accuracy, completeness and consistency of the Customer Resources. If Cox informs Customer of such failure and Customer does not cure the failure within ten (10) days, then Cox may terminate the Professional Services without liability to Customer and Customer shall remain responsible for all Fees under the applicable SOW. Customer consents to Cox’s sharing of any Customer Resources, Customer Data and/or Customer Content with Cox’s suppliers and subcontractors for the performance of the Professional Services.

(c)  The Professional Services shall be deemed accepted by Customer upon Cox’s completion of the Professional Services, except subject to any acceptance testing otherwise agreed upon by the Parties in an applicable SOW. Fees for the Professional Services are not refundable once accepted.

(d)  Customer is responsible for any consents and notices required to permit Customer’s use and receipt of the Professional Services.

(e)  The Professional Services may include advisory services from Cox, and all such advisory services are recommendations only. Customer is responsible for the results achieved when determining whether to implement recommendations from Cox. Cox may deliver recommendations to Customer in the form of a working paper or report, which Customer may use, modify and reproduce only for Customer’s internal business purposes.

(f)  All Professional Services and technical support provided by Cox pursuant to this Agreement will be provided in the English language except as otherwise agreed upon separately by the Parties.

3.3 Restrictions on Platform Use
(a)  Customer shall ensure that neither Customer nor any Authorized User(s) shall: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, reproduce, or timeshare in any way the Platform, Platform Services, Deliverables, Professional Services, or any part thereof, including those parts provided by Cox’s third party licensors and materials and documentation provided as a part of the Platform Services, except that Customer may sublicense rights to use the Platform, Platform Services, Professional Services or Deliverables to its affiliates as described in Section 3.1, but Customer’s affiliates may not sublicense these rights;; (ii) (except with respect to a Customer Application), provide on a service bureau basis, or otherwise commercially exploit, or make available or allow any third party other than an Authorized User to access any part of the Platform, Platform Services, or Deliverables in any way; (iii) modify or make derivative works based on any part of the Platform or Platform Services; (iv) decipher, decompile or reverse engineer any other part of the Platform or otherwise access or attempt to access any part of the Platform, Platform Services, or Deliverables in any manner not expressly permitted herein, including accessing any part of the Platform, Platform Services, or Deliverables in order to (A) build a competitive product or service, (B) build a product using ideas, features, functions or graphics similar to those of the Platform, or (C) view, download, or copy any code or algorithm or copy any ideas, features, functions or graphics of any other part of the Platform, Platform Services, or Deliverables; or (v) access or use the Platform, Platform Services, or Deliverables in any way intended to avoid incurring Fees or evade any access or use restrictions under the Agreement. Without limiting the generality of the foregoing, Customer must comply with, and may not work around, any technical limitations in a Platform and Platform Services that only allow Customer to use them in certain ways and Customer must comply with current technical documentation applicable to the Platform and/or Platform Services posted on the Cox Portal.

(b)  Customer shall ensure that neither Customer nor any Authorized User(s) shall: (i) use the Platform, Platform Services, or Deliverables in violation of any Laws, including without limitation to send spam or otherwise duplicative or unsolicited messages in violation of Laws or in violation of applicable, if any, export control Laws; (ii) use the Platform to send or store, as determined by Cox, infringing, obscene, offensive, threatening, libelous, or otherwise unlawful, material that encourages harm to Cox or any third party, or tortious material, including Customer Content and including material that is harmful to children or, without limiting the foregoing, infringes on the copyright, trademark, moral rights, patent, rights of privacy, rights of publicity or any other intellectual property right of Cox or any third party; (iii) use the Platform, Platform Services or Deliverables in any way that could harm the Platform or any other customer’s use thereof, such as to send or store viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs within the Platform; (iv) interfere with or disrupt the integrity or performance of any part of the Platform or the data contained therein; (v) attempt to gain unauthorized access to any part of the Platform, its related systems or networks, any other customer’s account or to attempt to obtain any materials or information through any means not intentionally made available by Cox; (vi) use the Platform, Platform Services, Professional Services, or Deliverables for High Risk Uses; (vii) use the Platform, Platform Services, Professional Services, or Deliverables for materials or activities that are subject to the International Traffic in Arms Regulations (ITAR) maintained by the United States Department of State; (viii) use the Platform to engage in cryptocurrency mining; (ix) use or exploit the Platform and/or any Platform Service or Deliverable, or any portion thereof, in any application that directly competes with any product or service offered by Cox or an Affiliate; (x) develop, maintain, participate in the development of, or support any product, service, development tool, or software framework that directly competes with the Platform, Platform Services or Professional Services; (xi) use or exploit the Platform and/or Platform Services or Professional Services, or any portion thereof, in any manner that causes harm and/or disruption to the Platform, Platform Services, or Cox network; and/or (xii) use or exploit the Platform, Platform Services, and/or Professional Services, or any portion thereof, in any manner that violates this Agreement, including without limitation, the AUP or the Cox Edge Privacy Notice; or (xiii) to assist or encourage anyone to do any of the above.

(c)  Cox reserves the right to suspend or terminate Customer’s or any Authorized User’s access to or use of the Platform, Platform Services, or Professional Services, or any portion thereof, with or without prior notice, and/or remove, disable access to, or modify any Customer Content or other resource in response to any violation or suspected violation of the terms and conditions contained in the Agreement by Customer and/or any Authorized User, including, without limitation Section 3.3(a) and Section 3.3(b), the Cox Edge Privacy Notice, or the AUP. Without limiting the generality of the foregoing or Cox’s rights under the AUP, Cox may review Customer’s or Authorized Users’ use of the Platform and Platform Services and any Customer Data to investigate any potential violation of this Agreement, including, without limitation Section 3.3(a) and Section 3.3(b), the Cox Edge Privacy Notice, or the AUP. Cox will have no liability to Customer or any Authorized User arising from any suspension or termination under this Section 3 or for any other reason.

(d)  Customer shall provide information or other materials related to Customer Content (including copies of any client-side applications) as reasonably requested by Cox to verify Customer’s compliance with the Agreement. Customer shall reasonably cooperate with Cox to identify the source of any problem with the Platform, Platform Services or Professional Services that we reasonably believe may be attributable to Customer Content or any end user materials that Customer controls.

(e)  Without limiting anything else contained in this Section 3, if Customer or any officer, director, employee, agent, or other representative of Customer, including any Authorized User becomes the subject of public disrepute, contempt, or scandal that affects Customer’s or Cox’s image or goodwill or if Customer or any officer, director, employee, agent, or other representative of Customer acts in a way that is widely deemed by members of the general public, to embarrass, offend, insult or denigrate individuals or groups or that will tend to shock, insult or offend the community or public morals or decency or otherwise prejudice Cox in general, as determined according to Cox’s sole discretion, then Cox may immediately suspend or terminate provision of the Platform, Platform Services and Professional Services to Customer and/or remove, disable access to, or modify any Customer Content.

(f)  In addition to Cox’s rights of termination, suspension and takedown under Section 3.3(c) above, Cox may suspend Customer’s or any Authorized User’s access to the Platform, Platform Services or Professional Services and/or remove, disable access to, or modify any Customer Content or other resource if (a) Cox believes Customer's or any Authorized User's use of the Platform or Platform Services could adversely impact the Platform or Platform Services, other customers' or their authorized users' use of the Platform, Platform Services, Professional Services or the Cox network or servers used to provide the Platform and Platform Services; (b) there is suspected unauthorized third-party access to the Platform, Professional Services or Platform Services; or (c) Cox believes it is required to suspend Customer’s or an Authorized User’s access to the Platform or Platform Services and/or remove, disable access to, or modify any Customer Content or other resource to comply with Laws. If Customer’s access to the Platform, Platform Services, and Professional Services is terminated under this Section 3.3(f), then Customer’s sole remedy shall be limited to Cox reimbursing Customer for Fees that Customer has prepaid to Cox, if any.

(g)  Notwithstanding this Agreement’s prohibition on High Risk Use, Customer shall design and implement Customer Application(s) and Customer Content such that, in the event of any interruption, defect, error, or other failure of the Platform, Platform Services or Professional Services, the safety of people, property, and the environment are not reduced below a level that is reasonable, appropriate, and legal, whether in general or for a specific industry. Customer agrees to defend, indemnify and hold Cox harmless from and against all damages, costs and attorneys' fees in connection with any claims arising from a violation of this Section 3.2(g), including any claims based in strict liability, or that Cox was negligent in designing or providing the Platform.

3.4 End User Terms
In order to provide services to Customer’s end users, Customer and Customer’s end users must validly agree to a binding, written agreement that contains the substance of the following requirements: (a) Customer is the sole provider of the services; (b) Customer is responsible for providing any support to end users; (c) Customer’s services will be provided by Customer to Customer’s end users under Customer’s terms of use and privacy policy;  (d) Customer is solely responsible for ensuring compliance with all applicable laws, with respect to Customer’s provision and end users’ use of the service;  (e) Customer and Customer’s end users may not use the Platform to facilitate or engage in cryptocurrency mining; (f) Customer will disclaim any and all warranties in connection with the services, and Customer will disclaim the same with respect to Cox; and (g) Customer will disclaim liability and exclude damages in a way that is consistent with the provisions of any applicable agreement(s) between Customer and Cox.

3.5 Privacy and Security
(a)  Customer shall ensure that neither Customer nor any Authorized User permits, intentionally or unintentionally, any unauthorized access to the Cox Portal or Platform.
 
(b)  Customer is solely responsible for and shall maintain the security of the Customer Data, such as without limitation: (i) using the Platform and Platform Services to ensure a level of security appropriate to the risk in respect of the Customer Data; (ii) securing the Cox Portal and other account authentication credentials, systems and devices Customer uses to access the Platform or Platform Services; and (iii) backing up its Customer Data as appropriate.

(c)  Customer remains solely responsible for and shall ensure that all Customer Applications and other applications and programs hosted on the Platform are run in a secure manner such as, without limitation, by: (i) establishing access controls such as (A) to limit access to its information systems and the facility or facilities in which they are housed to properly authorized persons; (B) to prevent employees and others who should not have access from obtaining access; and (C) to remove access in a timely basis in the event of a change in job responsibilities or job status; (ii) providing change and configuration management, such as (A) establishing a process for documenting, testing and approving the promotion of changes into production and (B) a security patching process that requires patching systems in a timely manner based on a risk analysis; and (iii) using a reputable independent third party to conduct a security review of the source code of any such applications or programs (i.e., thorough white box testing).

(d)  Customer is solely responsible for and shall secure its virtual infrastructure, such as without limitation; (i) employing industry standard encryption mechanisms to materially protect and ensure the integrity of Customer Data and other materials; (ii) ensuring that firewalls shall be configured to deny all traffic except the traffic that is required for business reasons; and (iii) maintaining and deploying an accurate asset management plan.

(e)  Without limiting the foregoing, Customer is solely responsible for providing and collecting any required notices, consents and/or authorizations related to Customer’s provision of and processing of, Customer Content and Customer Data (including any personal information) on the Platform and processing any personal information in accordance with applicable law.

4. THIRD PARTY PRODUCTS

4.1 Third Party Licenses.
Certain Non-Cox Products distributed in connection with the Platform, Platform Services and Professional Services are licensed to Customer (not under the terms and conditions of this Agreement, but rather) pursuant to the terms and conditions of the applicable licenses that appear upon installation, acceptance and/or activation of the relevant product or other material and/or are contained or described in the corresponding release notes or other documentation. Customer shall review and abide by the terms and conditions, and policies incorporated therein, of such licenses. Cox, however, assumes no responsibility or liability whatsoever for any Non-Cox Product. Customer is solely responsible for any Non-Cox Product that it installs or uses in connection with Platform, Platform Services, Professional Services and/or Deliverables.

5. FEES & PAYMENTS

5.1 Fees.
The Fees for the Platform and Platform Services are based on Customer’s monthly use of the Platform and Platform Services selected by Customer on the Cox Portal or otherwise agreed upon in an SOW. Customer agrees that all Fees are payable only in U.S. dollars. Fees for the Professional Services are the hourly rates and bundled pricing for the Professional Services agreed upon by the Parties in the applicable SOW.

5.2 Invoicing.
Except with respect to the auto-payment described below, Cox shall issue invoices for the Platform and Platform Services based on the Fees incurred during the applicable month. With respect to the Professional Services, Cox shall issue invoices at the frequency and in the manner specified in the applicable SOW. Subject to Section 5.5 below, Customer shall pay all Fees within thirty (30) calendar days from Cox’s issuance of the applicable invoice.

5.3 Auto-Pay.
In order to purchase Platform access and Platform Services through the Cox Portal, Customer must have valid credit card on file with Cox (“Authorized Payment Method”). By accepting this Agreement, Customer authorizes Cox to draw invoiced amounts using the Authorized Payment Method on the first day of each month based on the Fees incurred for the preceding month. If Customer does not make payment and/or Cox is unable to draw the invoiced amounts as required in this Section 5, then Cox may, but shall not be required to, suspend Customer’s access to the Platform, Platform Services, and/or Professional Services.

5.4 Pricing.
Other than with respect to the Fees agreed upon by the Parties in any SOW, Cox may change the Fees and surcharges applicable to the Platform and Platform Services by notifying Customer via email or notification in the Cox Portal. Changes to Fees and surcharges will be effective upon the start of the next billing period following notification.

5.5 Billing Disputes.
Cox's measurement of Customer's use of the Platform, Platform Services and Professional Services is final. Fees reasonably disputed by Customer in good faith shall not be due and payable for a period of thirty (30) days following the invoice due date (“Due Date”) for such charges, provided Customer: (i) pays all undisputed charges on or before the Due Date, (ii) presents a written statement of any billing discrepancies to Cox in reasonable detail together with appropriate supporting documentation on or before the Due Date of the invoice in question, and (iii) negotiates in good faith with Cox for the purpose of resolving such dispute within said thirty (30) day period. In the event such dispute is mutually agreed upon and resolved in favor of Cox, Customer agrees to pay Cox the disputed amounts together with any applicable late fees within ten (10) days of the resolution (the “Alternate Due Date”). If such dispute is mutually agreed upon and resolved in favor of Customer, Customer will receive a credit for the disputed charges on the following month’s invoice. If Cox has responded to Customer’s dispute in writing and the Parties fail to mutually resolve or settle the dispute within such thirty (30) day period (unless Cox has agreed in writing to extend such period), all disputed amounts together with the late fees shall become due and payable, and this provision shall not be construed to prevent Customer from pursuing any legal remedies as provided in this Agreement. Cox shall not be obligated to consider any notices of billing discrepancies from Customer which are received by Cox more than thirty (30) days following the Due Date of the invoice in question. Cox reserves the right to invoice and collect any amounts that it failed to bill or collect in previous invoices at any time.

5.6 Taxes.
The Fees are exclusive of taxes and similar assessments. Customer is responsible for all sales, use and excise taxes, and any other similar taxes, duties, charges, and surcharges of any kind imposed on any amounts payable by Customer hereunder, other than any taxes imposed on Cox’s income.

5.7 Support. 
Customer is responsible for providing technical support of its Customer Applications and to its customers. Cox will provide technical support to Customer during the Term in accordance with the support policies made available to Customer through the Cox Portal.

6. PROPERTY RIGHTS

6.1 Ownership Rights.
As among Cox, Customer, and the Authorized Users, all right, title and interest in and to the Platform, Platform Services, Deliverables or any portion thereof, including modifications, enhancements, and derivations thereof, and all intellectual property rights, including patents, copyrights, trademarks, trade secrets, and other intellectual property and proprietary rights (“Intellectual Property”) in and to the foregoing belong to and are retained solely by Cox. Except as permitted by and subject to this Agreement, Customer may not reference Cox or its Affiliates, the Platform Services or Professional Services (or any component thereof) or any of Cox’s Intellectual Property on its marketing materials, social media, or web sites without Cox’s prior written approval. Except for the express rights granted in this Agreement, there are no other rights or licenses granted to Customer or the Authorized Users, express, implied, or by way of estoppel in or to the Cox Portal, Platform or Platform Services.  All rights not granted in the Agreement are reserved by Cox.

6.2 Ownership of Feedback. 
Cox will own any suggestions for improvements or changes, ideas, feedback, error identifications, or other information related to the Platform, Platform Services or Professional Services, including any Beta versions thereof, or the use thereof provided, whether orally or in writing, by Customer or the Authorized Users (“Feedback”). Without limiting the foregoing, Cox and its Affiliates may use Feedback without restriction and without obligation to Customer. Customer providing Feedback is voluntary and Cox is under no obligation to post or use any Feedback. Customer warrants that 1) it will not provide Feedback that is subject to a license requiring Cox to license anything to third parties because Cox exercises any of the above rights in Feedback; and 2) it owns or otherwise controls all of the rights to such Feedback and that no such Feedback is subject to any third-party rights (including any personality or publicity rights). If Customer offers a service competitive to the Platform, Platform Services or Professional Services, by using the Platform, Platform Services or Professional Services, Customer agrees to waive any restrictions on competitive use and benchmark testing in the terms governing its competitive service. If Customer does not intend to waive such restrictions in its terms of use, Customer may not use the Platform, Platform Services or Professional Services.

6.3 Notice of Infringement.
With respect to Customer’s use of the Platform and Platform Services, Cox assumes no responsibility, and Customer assumes all risk regarding the determination of whether material, including any Customer Content, is in the public domain, or may otherwise be used by Customer or any Authorized Users for any purpose. Cox will respond to notices of alleged copyright infringement, and in the event that Cox receives a claim of infringement from a copyright owner, Cox may, but shall not be required to forward one or more such notices directly to Customer. Nothing in this Section 6.3 limits Cox’s rights and powers to inspect Customer Content or take other action as permitted under the Agreement. Consistent with federal law, Cox may suspend and, in appropriate circumstances, terminate any Customer who is a copyright infringer.  For more information regarding Cox’s policies and procedures addressing copyright infringement, please visit https://www.cox.com/aboutus/policies/copyright.html.

7. REPRESENTATIONS AND WARRANTIES

7.1 Customer Warranties. 
Customer represents and warrants the following: (a) Customer shall comply with all Laws, including any privacy and data security Laws, in the performance of its obligations and exercise of its rights under the Agreement and its receipt and use of the Platform, Platform Services or Professional Services; (b) the execution, delivery and performance of the Agreement by Customer (i) has been duly authorized by Customer and (ii) will not conflict with, result in a breach of or constitute a default under any other agreement to which Customer is a party or by which Customer is bound; (c) that neither Customer nor any Authorized Users are natural persons located in the United Kingdom or European Economic Area; and (d) Customer has all rights, licenses, consents and permissions required for Customers and/or any Authorized User’s use of any software, applications, and any other content, including any Customer Application(s) that Customer or any Authorized User uploads to, runs on, stores in, creates, or uses in connection with the Platform (“Customer Content”), and agrees and understands that Customer remains fully responsible for Customer Content.

7.2 Without limiting any disclaimer set forth in the Agreement, no Service Level Agreement applies to the Beta Services.

7.3 Disclaimers.
EXCEPT AS SPECIFICALLY SET FORTH IN THE AGREEMENT, THE PLATFORM, COX PORTAL, PLATFORM SERVICES, AND PROFESSIONAL SERVICES ARE PROVIDED ON AN “AS IS” AND “WHERE AVAILABLE” BASIS. EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED HEREIN, COX MAKES NO REPRESENTATIONS OR WARRANTIES AND HEREBY SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS AND WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES ARISING BY COURSE OF DEALING OR CUSTOM OR TRADE, WITH RESPECT TO THE PLATFORM, PLATFORM SERVICES OR PROFESSIONAL SERVICES OR THAT ACCESS TO OR USE OF THE PLATFORM, PLATFORM SERVICES OR PROFESSIONAL SERVICES WILL BE ERROR-FREE, DELAY-FREE OR UNINTERRUPTED. WITHOUT LIMITING THE FOREGOING, COX HEREBY SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES (I) AS TO THE ACCURACY, TIMELINESS, QUALITY, TRUTH, AVAILABILITY, RELIABILITY, UPTIME OR SUITABILITY OF THE PLATFORM, PLATFORM SERVICES OR PROFESSIONAL SERVICES, (II) THAT THE PLATFORM, PLATFORM SERVICES OR PROFESSIONAL SERVICES WILL MEET THE REQUIREMENTS OR EXPECTATIONS OF CUSTOMER OR THE AUTHORIZED USERS, (III) THAT THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY CUSTOMER OR THE AUTHORIZED USERS VIA THE PLATFORM SERVICES WILL MEET THEIR EXPECTATIONS OR REQUIREMENTS, (IV) THAT THE PLATFORM, PLATFORM SERVICES OR PROFESSIONAL SERVICES WILL (A) BE COMPATIBLE WITH ANY PLATFORM OTHER THAN THAT EXPLICITLY LISTED IN DOCUMENTATION PROVIDED TO CUSTOMER BY COX, OR (B) PROVIDE ANY PARTICULAR OUTCOME; AND (V) THAT DEFECTS IN THE PLATFORM, PLATFORM SERVICES OR PROFESSIONAL SERVICES, IF ANY, WILL BE CORRECTABLE OR CORRECTED.

7.4 ADDITIONAL DISCLAIMERS; PERFORMANCE OF THE PLATFORM AND PLATFORM SERVICES.
(a)  PERFORMANCE OF THE PLATFORM AND CUSTOMER’S RECEIPT OF THE PLATFORM SERVICES AND PROFESSIONAL SERVICES, INCLUDING ANY NON-COX PRODUCT MADE AVAILABLE THEREON, IS SUBJECT TO, AND COX SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR INTERNET AVAILABILITY AND SPEED, EQUIPMENT, ELECTRIC POWER OR OTHER UTILITIES AND OTHER VITAL INFRASTRUCTURE, AND OTHER CAUSES BEYOND THE REASONABLE CONTROL OF COX OR ITS AFFILIATES.
 
(b)  Neither Cox nor its suppliers guarantee compliance with any particular security standard.

(c)  Customer acknowledges that the Platform, Platform Services and Professional Services (1) are not designed, intended or made available as a medical device(s), and (2) are not designed or intended to be a substitute for professional medical advice, diagnosis, treatment, or judgment and should not be used to replace or as a substitute for professional medical advice, diagnosis, treatment, or judgment. Customer is solely responsible for displaying and/or obtaining appropriate consents, warnings, disclaimers, and acknowledgements to end users of Customer’s products and services.

(d)  Cox bears no responsibility for Customer’s compliance with any Laws, including Laws governing Customer’s transmittal of promotional communications or data protection.

(e)  Cox may subcontract or delegate all or any portion of providing the Platform, Platform Services and/or Professional Services or any of its obligations under this Agreement to any third parties, entities, and/or individuals without Customer's prior consent. Customer consents to Cox’s sharing any Customer Data, Customer Content, Professional Services Data and any other information or access provided by Customer to Cox hereunder with such third parties as necessary or helpful for the performance of Cox’s obligations under the Agreement.

(f)  Protected Health Information, Sensitive Information and Credit Card Information. 
Customer agrees that the Platform, Platform Services and Professional Services shall not be used by Customer or any Authorized User for any patient or protected health information, any Sensitive Personal Information or any credit card information, and that no such information shall be provided to Cox by Customer or any Authorized User.  It is Customer’s responsibility to adequately protect any patient or protected health information, Sensitive Personal Information and any credit card information. Customer shall indemnify, defend, and hold harmless Cox from any third party claims, including without limitation, claims from Customer’s patients or end users, or the Department of Health and Human Services, or any other regulatory agency or person, that arise, in whole or in part, from Customer’s use of the Platform, Patient Services or Professional Services in violation of HIPAA, PCI or any other privacy or security Laws. Cox is not and does not intend to be a business associate as that term is defined under the Health Insurance Portability and Accountability Act of 1996 (HIPAA; Pub.L. 104–191, 110 Stat. 1936, enacted August 21, 1996) regulations (“HIPAA”).

8. CONFIDENTIALITY

8.1 General Confidentiality Obligations.
Customer shall not use or disclose Confidential Information (in any form) to or for the benefit of any person without Cox’s prior written consent, and shall hold all such Confidential Information in strict confidence. “Confidential Information” means all non-public or proprietary information relating to Cox, Affiliates, or Cox’s licensors, vendors, or business partners which at the time of disclosure (i) is marked as “Confidential” or “Proprietary”, (ii) is otherwise reasonably identifiable as the confidential or proprietary information of Cox, Cox’s Affiliates, or Cox’s licensors, vendors, or business partners, or (iii) should reasonably be understood to be confidential or proprietary information of Cox, Cox’s Affiliates, or Cox’s licensors, vendors, or business partners given the nature of the information and the circumstances surrounding its disclosure. Confidential Information shall not include information that is (a) in the public domain through no fault of Customer; (b) obtained by Customer independently from a third party without an obligation of confidentiality to Cox, Cox’s Affiliates, or Cox’s licensors, vendors, or business partners and without breach of the Agreement; or (c) independently developed by Customer without reference to the Confidential Information of Cox, Cox’s Affiliates, or Cox’s licensors, vendors, or business partners.  For the avoidance of doubt, the Platform Services shall be deemed to be Confidential Information of Cox.

8.2 Survival. 
For Confidential Information that does not constitute “trade secrets” under applicable Laws, these confidentiality obligations will expire three (3) years after the termination or expiration of the Agreement. For Confidential Information that constitutes a “trade secret” under applicable Law, these confidentiality obligations will continue until such information ceases to constitute a “trade secret” under such applicable Law.

8.3 Permitted Disclosure.
Notwithstanding Section 8.1, Customer shall be permitted to disclose relevant aspects of the Confidential Information to its employees, contractors, and agents, to the extent such disclosure is not restricted under any Laws or the Agreement and only to the extent that such disclosure is reasonably necessary for the performance of Customer’s duties and obligations under the Agreement; provided, that for each such disclosure Customer shall cause the Confidential Information to be protected, held in confidence and only used by any such recipient for the purposes permitted under the Agreement.

8.4 Compelled Disclosure.
If Customer is required by Law to disclose any Confidential Information, Customer (to the extent it is legally permitted) shall give prior notice to Cox so that Cox or its designee may seek an appropriate protective order or other remedy or waive the provisions of the Agreement, and Customer shall cooperate with Cox or such designee to obtain such protective order.  In the event that such protective order or other remedy is not obtained, Customer shall furnish only that portion of the Confidential Information which, in the written opinion of Cox’s counsel, is legally required to be disclosed and upon Cox’s request obtain assurances that confidential treatment shall be accorded to such Confidential Information.

8.5 Remedies. 
The Parties agree that a breach of Section 8 will result in the substantial likelihood of irreparable harm and injury to Cox for which monetary damages alone would be an inadequate remedy, and which damages are difficult to measure accurately.  Accordingly, the Parties agree that Cox shall have the right, in addition to any other remedies available, to obtain immediate injunctive relief as well as other equitable relief allowed by the federal and state courts.  The foregoing remedy of injunctive relief is agreed to be without prejudice to Cox’s right to exercise any other rights and remedies it may have, including the right to terminate the Agreement and seek damages or other legal or equitable relief.

8.6 Cox Right to Audit.
Customer agrees that Cox or its designated representative shall have the right to review and to copy any books, records, files, accounts and supporting documentation, including without limitation, stored information, data traffic, or security feature, pertaining to Customer’s: (i) use of the Platform, Platform Services, and Professional Services, (ii) obligations under this Agreement including without limitation payment obligations and compliance with applicable Laws, and in response to any request for information or audit request from any governmental or regulatory authority. Cox’s audit right hereunder shall last during the Term and for five (5) years thereafter. Customer agrees to allow the auditor(s), whether Cox or its designated representative, access to such records during normal business hours upon twenty four (24) hours’ notice from Cox.

9. DATA OWNERSHIP AND USAGE

9.1 Ownership and Right to Use of Customer Data.
(a)  Customer Data is and shall remain the property of Customer.  During the Term, Customer hereby grants Cox and Affiliates the right and license to use, copy, store, disclose and modify the Customer Data to provide the Platform, Platform Services, and Professional Services as otherwise necessary for managing Cox’s business, to comply with Law or legal proceeding(s), and to enforce or defend legal claims, including without limitation the enforcement of these Service Terms and the AUP.

(b)  Customer shall ensure that (i) its privacy policy (and any other applicable policies or disclosures) governing its information usage practices with respect to Customer Data, Customer Content, and other information permits Cox and its Affiliates to access and use the Customer Data, Customer Content, and other information as necessary to provide the Platform, Platform Services and Professional Services and (ii) it has obtained consents required by Laws, if any, to facilitate Cox’s provision of the Platform, Platform Services and Professional Services.

9.2 Rights to Aggregate Data. 
Notwithstanding anything to the contrary contained in Section 9.1, Cox, its Affiliates and their third party suppliers and providers shall have a perpetual, irrevocable right to use in any manner or disclose any aggregated data or information derived from the access to or use of the Platform Services or Professional Service by Customer or the Authorized Users; provided, however, that any disclosure to a third party by Cox of such data or information will be in compliance with the Cox Edge Privacy Notice (including applicable de-identification terms set forth in the Cox Edge Privacy Notice).

10. INDEMNIFICATION

10.1 Customer Indemnities.
Customer shall defend upon demand, indemnify, and hold harmless Cox, its Affiliates, and their respective officers, directors and employees (the “Cox Indemnitees”) from and against any losses, liabilities, damages, claims, suits, costs and expenses (including the reasonable fees of professional advisors) resulting from any third party claim: (a) by or on behalf of an Authorized User; (b) for which any Cox Indemnitee, as a result of any act, omissions or breach of the Agreement by Customer or any Authorized Users, may be required to indemnify, defend or hold harmless any third party, that is brought against a Cox Indemnitee arising out of any improper use of the Platform Services or any infringement of any third party’s rights with respect to Customer’s or any Authorized Users’ use, copying, modification, distribution, display or other activity relating to any Platform Services; (c) arising from use by Customer or any Authorized User of the Platform, Platform Services, Customer Content, or Professional Services (or any component thereof) in violation of the Agreement or in a manner not intended by this Agreement, including without limitation the AUP, the applicable third party terms, or Laws; (d) arising out of a breach by Customer or any Authorized User of Section 8; or (e) relating to gross negligence or intentional misconduct by Customer or the Authorized Users.

10.2 Infringement. 
If Cox becomes aware of a claim that any part of the Platform, or the provision of the Platform Services or Professional Services or the provision, operation, access, or use thereof, infringes or violates a third party’s intellectual property or other proprietary rights (an “Infringement Claim”), or if Cox believes such an Infringement Claim is likely, Cox may, in its sole discretion, either (i) appropriately modify the Platform, Platform Services or Professional Services or substitute a non-infringing version of the allegedly infringing component, (ii) obtain a license that allows Customer’s continued use of the Platform, Platform Services or Professional Services, (iii) require Customer to immediately cease using the Platform Services, or (iv) cease offering all or part of the Platform Services without liability. The obligations set forth in this Section 10.2 shall constitute Cox’s entire liability and Customer’s sole remedy for any actual or alleged Infringement Claim.

11. TERMINATION RIGHTS

11.1 Termination for Cause.
Except with respect to Cox’s rights to immediately suspend or terminate Cox’s provisions of the Platform, Platform Services and/or Professional Services and to takedown any Customer Content, either Party may terminate the Agreement immediately upon notice to the other Party if such other Party commits a material breach of the Agreement and, if such breach is capable of cure, fails to cure such breach within thirty (30) days after written notice thereof. Without limiting Cox’s suspension rights under Section 5.3 hereto, Cox may terminate the Agreement in the event of Customer’s violation of Customer’s payment obligations hereunder upon ten (10) days’ written notice to Customer.

11.2 Termination for Inactivity. 
Cox reserves the right to terminate the Agreement upon 30 days' advance notice if, for a period of 60 days (a) Customer has not accessed the Cox Portal and (b) the Customer has not incurred any Fees in that period.

11.3 Termination Relating to Services.
Cox may elect in its sole direction to cease providing the Platform Services, Professional Services, the Platform, or any feature thereof, or make a backwards-incompatible modification, at any time. If Cox ceases to provide any Platform Service(s), Professional Services, the Platform, or any feature thereof, including any backward-incompatible change, Cox will have the right to, in its sole discretion, terminate the availability of the Platform Services, Professional Services, Platform, or any feature thereof, upon notice to Customer. This section shall not limit Cox's ability to make changes required to comply with applicable law, address a security risk, or avoid a business or technical burden.

11.4 Customer Termination.
Customer may terminate this Agreement for its convenience at any time by (i) deleting the Customer’s account and (ii) ceasing Customer’s use of the Platform, Platform Services and Professional Services. Prior to termination, Customer shall remove any associated data or Customer Content. Otherwise, if Customer’s account is terminated, under any provision of this Section 11, Customer acknowledges and agrees that Cox may permanently delete Customer’s account and all the data associated with it, including any Customer Content.

11.5 Cox Termination. 
Without limiting any other rights contained herein, Cox may terminate this Agreement for its convenience at any time without liability with at least 30 days' prior notice to Customer.

11.6 Termination for Bankruptcy.
Cox may terminate the Agreement upon written notice to Customer if Customer: (a) ceases doing business in the normal course; (b) is the subject of any state or federal proceeding (whether voluntary or involuntary) relating to its bankruptcy, insolvency or liquidation that is not dismissed within ninety (90) days; or (c) makes an assignment for the benefit of creditors or a receiver is appointed for a substantial part of the other Party’s assets.

11.7 Cross-Termination.
Cox and its Affiliates may terminate all Agreements then in effect between Customer and Cox or its Affiliate if any such Agreement then in effect is terminated.

11.8 Effect of Expiration or Termination. 
Immediately upon any termination or expiration of the Agreement for any reason, Customer and the Authorized Users shall cease all access to and use of the Platform and Platform Services. Customer shall be responsible for the payment of all Fees with respect to Customer’s access to and use of the Platform Services and Professional Services performed through the effective date of termination.

12. LIMITATIONS OF LIABILITY

12.1 Damages Cap.
COX’S AND ITS AFFILIATES’ TOTAL AGGREGATE LIABILITY TO CUSTOMER (OR ANY OTHER PERSON OR ENTITY (INCLUDING AUTHORIZED USERS)) FOR ANY AND ALL CLAIMS AND DAMAGES ARISING FROM OR OUT OF THE AGREEMENT (WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, BREACH OF WARRANTY, OR OTHERWISE) SHALL IN NO EVENT EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO COX FOR THE ASPECT OF THE PLATFORM, PLATFORM SERVICE OR PROFESSIONAL SERVICE GIVING RISE TO THE LIABILITY DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE DAY THE FIRST ACT OR OMISSION OCCURRED THAT GAVE RISE TO CUSTOMER’S CLAIM.  NOTWITHSTANDING THE FOREGOING, COX AND ITS AFFILIATES SHALL HAVE NO LIABILITY TO CUSTOMER OR ANY OTHER PERSON OR ENTITY (INCLUDING AUTHORIZED USERS) ARISING FROM OR RELATED TO THE UNAUTHORIZED OR ACCIDENTAL DESTRUCTION, LOSS, ALTERATION OF OR ACCESS TO CUSTOMER DATA, CUSTOMER CONTENT, OR CUSTOMER APPLICATIONS.

12.2 Consequential Damages. 
COX WILL NOT BE LIABLE TO CUSTOMER OR ANY OTHER PARTY, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, BREACH OF WARRANTY, OR OTHERWISE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, RELIANCE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO ITS PERFORMANCE OR FAILURE TO PERFORM UNDER THE AGREEMENT, INCLUDING LOSS OF REVENUE, BUSINESS PROFITS, INTEREST OR ANTICIPATED SAVINGS, LOSS OF GOODWILL OR REPUTATION, LOSS OF OR DAMAGE TO RECORDS OR DATA, PENALTIES, COST OF REPLACEMENT SERVICES, OR THIRD PARTY CLAIMS FOR LOSS OR DAMAGE OR OTHER COMPENSATION ARISING FROM ANY ACT OR OMISSION OF COX OR ITS AFFILIATES, OFFICERS, AGENTS, OR EMPLOYEES, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES. COX IS NOT RESPONSIBLE OR LIABLE FOR ANY INCORRECT OR INACCURATE INFORMATION ENTERED ON THE PORTAL OR OTHERWISE PROVIDED TO COX BY CUSTOMER OR ANY AUTHORIZED USER, AND ASSUMES NO RESPONSIBILITY FOR (I) ANY ERROR, OMISSION, INTERRUPTION, DEFECT, DEGRADATION OR DELAY IN OPERATION OR TRANSMISSION AT ANY WEBSITE, (II) COMMUNICATIONS LINE, INTERNET, TRANSPORT, POWER, HARDWARE AND/OR SOFTWARE FAILURES, OR (III) DAMAGE TO ANY COMPUTER OR DEVICE (SOFTWARE OR HARDWARE) RESULTING FROM USE OF THE PLATFORM, PLATFORM SERVICES OR PROFESSIONAL SERVICES.

12.3 Essential Element.
Each Party acknowledges and agrees that the provisions of the Agreement that limit liability, disclaim warranties, and/or exclude consequential damages or other damages or remedies are essential terms and are fundamental to the Parties’ understanding regarding allocation of risk.  Accordingly, such provisions shall be independent of any other provisions of the Agreement and shall be enforced regardless of any breach hereof or other occurrence or condition relating in any way to the Agreement.  Without limiting the generality of the foregoing, EACH PARTY AGREES THAT ALL LIMITATIONS OF LIABILITY, DISCLAIMERS OF WARRANTIES, AND EXCLUSIONS OF CONSEQUENTIAL DAMAGES OR OTHER DAMAGES OR REMEDIES SHALL REMAIN FULLY VALID, EFFECTIVE AND ENFORCEABLE IN ACCORDANCE WITH THEIR RESPECTIVE TERMS, EVEN UNDER CIRCUMSTANCES THAT CAUSE ANY EXCLUSIVE REMEDY UNDER THE AGREEMENT TO FAIL OF ITS ESSENTIAL PURPOSE.

13. PROPERTY RIGHTS

13.1 Independent Contractor.
NOTHING IN THE AGREEMENT IS INTENDED TO CREATE ANYTHING OTHER THAN AN INDEPENDENT CONTRACTOR RELATIONSHIP BETWEEN THE PARTIES. NO PARTNERSHIP, FRANCHISE, JOINT VENTURE, EMPLOYMENT OR ANY OTHER FORM OF AGENCY RELATIONSHIP EXISTS OR IS IMPLIED BETWEEN CUSTOMER AND COX. Neither Party will bind or commit the other to any obligation, or incur any charge or expense for, or in the name of, the other without the other Party’s prior written consent. No officer, director, employee, Affiliate or agent of either Party shall be deemed to be an employee or agent of the other Party.
 
13.2 Assignment.
Customer will not, without Cox’s prior written consent, assign or otherwise transfer any of its rights or delegate any of its duties pursuant to the Agreement. Any attempted assignment in violation of this Section 13.2 will be null and void and of no force or effect. Cox may assign, transfer, or delegate all or a portion of its rights and obligations under the Agreement, without Customer’s consent.
 
13.3 Waiver.
The omission or delay enforcing or exercising any provision of the Agreement shall not be deemed, and shall not constitute, a waiver of such provision or any other provision and no course of dealing shall operate as a waiver of any right, power, or privilege available under the Agreement.

13.4 Recruitment of Personnel.
During the Term and for a period of one (1) year thereafter, Customer shall not engage or offer employment to any employee of Cox with whom Customer has had contact arising out of or in connection with this Agreement, including without limitation, Cox’s provision of the Professional Services.

13.5 Modification. 
Cox may amend this Agreement from time to time for any reason or no reason. Except with respect to changes applicable to new functionality, which shall apply immediately, amendments shall be effective upon five (5) days’ notice to Customer.  Posting the amended Service Terms at coxedgeservices.com (or successor URL) or posting revised Service Terms in the Cox Portal will constitute written notice to Customer, with the notice period starting as of the posting date. If Customer does not agree to the revised Agreement, then Customer may stop using the Platform, Platform Services and/or Professional Services and Customer's continued use of the Platform, Platform Services and/or Professional Services after such notice of such change will constitute Customer's consent to such changes. Customer may contact Cox to access a prior version of this Agreement.

13.6 Severability.
The provisions of the Agreement are severable, and if any clause or provision of the Agreement is declared by any court of competent jurisdiction to be invalid or unenforceable for any reason, such invalidity or unenforceability shall not affect the remaining provisions.

13.7 Notices. All notices, requests, demands, or other communications under the Agreement shall be in writing and shall be deemed to have been duly given on the date of service if served personally on the Party to whom notice is to be given. With respect to notice to Cox, by first class mail, registered or certified, postage prepaid, and addressed to Cox Edge Customer Success Team, 6205B Peachtree Dunwoody Road, 3rd Floor, Atlanta, GA  30328, with a copy to 6205-B Peachtree Dunwoody Road, Atlanta, Georgia 30328, ATTN: Legal Department. With respect to notice to Customer, except as provided in Section 13.5, Cox may, at Cox’s sole option, provide notice (i) electronically to any email address provided by Customer at registration; (ii) electronically through the Cox Portal, or (iii) by first class mail, registered or certified, postage prepaid, and properly addressed to the billing address provided by Customer to Cox.  Cox may change its address indicated above by giving Customer written notice of the new address in the manner above set forth.

13.8 Governing Law. 
The Agreement and the rights and obligations of the Parties under the Agreement shall be governed by and construed and enforced in accordance with the Laws of the State of Georgia, without giving effect to the principles thereof relating to the conflicts of laws.  The Parties agree to exclude the application of the United Nations Convention on Contracts for the International Sale of Goods (1980).  In addition, the Parties mutually acknowledge and agree that the Agreement relates solely to the performance of services (not the sale of goods) and, accordingly, shall not be governed by the Uniform Commercial Code of any state having or claiming jurisdiction.

13.9 Venue and Jurisdiction. 
Neither Party will (a) contest the venue of any legal action, suit, or proceeding brought in state or federal courts located in DeKalb County or Fulton County, Georgia or (b) oppose a motion to transfer venue to such courts.  Each Party irrevocably accepts and submits to the jurisdiction of each of the aforesaid courts in personam, generally and unconditionally with respect to any action, suit or proceeding brought in or transferred to such courts and waives any argument as to the inconvenience of the forum.
 
13.10 Force Majeure. 
Except for Customer’s payments obligations, neither Party shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; pandemic; electrical, internet, or telecommunication outage; government restrictions (including the denial or cancelation of any permit, franchise, export, import or other license); or other event outside the reasonable control of the obligated Party (a “Force Majeure Event”). Each Party shall use commercially reasonable efforts to mitigate the effect of a Force Majeure Event.  This Section does not excuse either Party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or Customer’s obligation to make payments under the Agreement.

13.11 Remedies Cumulative. 
Except as otherwise expressly indicated herein, no right or remedy herein conferred upon or reserved to either Party is intended to be exclusive of any other right or remedy, and each and every right and remedy shall be cumulative and in addition to any other right or remedy under the Agreement, or under applicable Law, whether now or hereafter existing.  The election by a Party of any remedy provided for in the Agreement or otherwise available to such Party shall not preclude such Party from pursuing any other remedies available to such Party at law, in equity, by contract or otherwise.
 
13.12 Section Headings.
The headings contained in the Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of the Agreement.

13.13 Entire Agreement.
Other than with respect to the Parties’ agreement(s) for services that are not referenced herein, this Agreement constitutes the entire understanding of Cox and Customer for access to the Platform, Platform Services and Professional Services, and upon the Agreement becoming effective, supersedes all prior notices, negotiations and agreements by the Parties relating to these matters, both oral and written. Other than as expressly set forth in the Agreement, the Agreement may be amended only by a written amendment executed by both Parties.

Cox Edge Beta Service Agreement for Businesses

These COX EDGE BUSINESS TERM AND CONDITIONS apply to all Customers who sign a SERVICE ORDER with Cox for use of the Platform, Platform Services or Professional Services (each defined below). These COX EDGE BUSINESS TERMS AND CONDITIONS, which, together with the COX EDGE SERVICE ORDER(S) constitute a binding agreement between  between Cox and Customer (the “Business Agreement ”). Cox and Customer are each referred to herein individually as a “Party” and together as the “Parties”. The Business Agreement  includes the Cox Edge Privacy Notice, located at https://www.cox.com/aboutus/policies/edge-privacy-notice.html  and the Cox Edge Acceptable Use Policy located at https://www.cox.com/aboutus/policies/edge-acceptable-use-policy.html (“AUP”), which are incorporated into this Business Agreement  by this reference.  The Business Agreement  governs Customer’s and Authorized Users’ access to and use of Cox Edge (the “Platform”), including any services and functionality related thereto, (the “Platform Services”), and the implementation and consulting services related to the Platform and Platform Services (the “Professional Services”).   

Only the Platform, Platform Services and Professional Services for testing purposes (“Beta Services”) may be accessed under this Business Agreement . Without limiting any other provision contained herein, the Beta Services are provided on an “as is” and “where available” basis. Cox, in its sole discretion, (1) may not provide standard technical support for and does not offer any warranties for the Beta Services, (2) may change or discontinue any Beta Service at any time without notice, or (3) choose not to make a Beta Service generally commercially available. Customer may provide Cox with information relating to access, use, testing, or evaluation of Beta Services, including observations or information regarding the performance, features, and functionality of Beta Services (“Test Observations”). Cox will own, may use, and evaluate all Test Observations for its own purposes. Customer shall not use any Test Observations except for Customer’s internal evaluation purposes of any Beta Service.

WHEREAS, Cox, by and through its Affiliates is authorized to provide the Platform, Platform Services and Professional Services (collectively “Services”); and

WHEREAS, Customer desires to purchase the Services from Cox under the terms and conditions contained in this Business Agreement; and  

NOW, THEREFORE, In consideration of the premises and mutual promises contained in the Business Agreement , and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Customer and Cox agree as follows:

1. DEFINITIONS

1.1 "Affiliate" means any entity that directly or indirectly controls or is controlled by, or is under direct or indirect common control with, Cox.

1.2 "Cox Portal" means the means the online console(s) or dashboard provided by Cox to Customer for administering the Platform, Platform Services, and Professional Services.

1.3 "Customer Application" means a software program that Customer creates or hosts using the Platform and/or Platform Services that has material value independent of the Platform, Platform Services and/or Professional Services.

1.4 "Customer Data" means all data or information submitted through the Cox Portal and Platform by Customer or its Authorized Users in connection with the Business Agreement  including, without limitation, Professional Services Data.

1.5 "Deliverables" means the work product, if any, provided to Customer by Cox pursuant to the Professional Services.

1.6 "Fees" means the amount payable from Customer to Cox.

1.7 "High Risk Use" means activities where the use or failure of the Platform or Platform Services would reasonably be expected to lead to death, personal injury, or environmental damage (such as the creation or operation of nuclear facilities, air traffic control, life support systems, or weaponry).

1.8 "Laws" means all applicable laws, statutes, rules, regulations, and orders, whether foreign, domestic, or international, by any governmental authority as in effect from time to time.

1.9 "Non-Cox Product" means any third-party-branded software, data, service, website or product, unless incorporated by Cox in the Platform, Platform Service(s) or Professional Services.

1.10 "Professional Services Data" means all data, including all text, sound, video, image files or software, that are provided to Cox, by or on behalf of a Customer (or that Customer authorizes Cox to obtain from the Platform or a Platform Service) or otherwise obtained or processed by or on behalf of Cox through an engagement with Cox to obtain Professional Services. Professional Services Data includes Support Data.

1.11 “Resell End Users” means any consumer of Customer’s products who has been provided access to the Beta Services by Customer through Customer’s status as an Authorized Reseller.

1.12 "Sensitive Personal Information" means (a) personal identifiers such as social security number, passport number, driver’s license number, tax numbers or other government-issued identification numbers, date and place of birth, mother‘s maiden name, genetic biometric records or any similar identifier (or any portion thereof); (b) financial information such as banking account numbers; (c) account, including email account, passwords or other credentials or (d) any information that, if compromised, creates notice obligations under state security breach reporting Laws.

1.13 "SOW" means the written agreement specifying, without limitation, the scope, objective, and time frame of the Professional Services that Cox and/or its subcontractors will perform for Customer.

1.14 "Support Data" means all data, including all text, sound, video, image files, or software, that are provided to Cox by or on behalf of Customer (or that Customer authorizes Cox to obtain from the Platform) through an engagement with Cox to obtain technical support for the Platform and Platform Services covered under this Business Agreement.

2. TERM AND SURVIVAL

Unless otherwise agreed by the Parties in writing, the term of the Business Agreement  (the “Term”) commences upon Customer’s acceptance of this Business Agreement , the method for which is described above, and will continue until terminated for any reason or it expires in accordance with this Business Agreement . Certain terms and conditions of the Business Agreement  will survive the end of the Term, including Sections 5, 6, 8, 10 and 12 of this Business Agreement  and any terms identified in any other document that makes up the Business Agreement  as surviving the end of the Term.

3. ACCESS TO THE PLATFORM AND SERVICES

3.1 Access And Use.
(a)  Customer shall submit to a Service Order upon which Cox shall provide the requested Service(s). Customer’s submission of a Service Order is valid only upon acceptance by Cox and Cox may respond to Customer declining to provide the requested Service(s). Cox may, reject any request for Services at its sole discretion. Upon acceptance of the executed Service Order by Cox, the Service Order shall be automatically incorporated into this Business Agreement .  All Service Orders are subject to the terms and conditions of this Business Agreement .

(b)  During the Term, Customer will have the right, and the right to permit Customer’s employees and other personnel designated by Customer as well as Customer’s affiliates and such affiliates’ employees and other personnel designated by Customer or its affiliate (collectively, the “Authorized Users”), to access and use the Services purchased on any Service Order and to purchase Professional Services through an SOW. Customer is liable for ensuring all Authorized Users’ compliance with the terms of this Business Agreement  and Customer will be liable to Cox for the acts and omissions of the Authorized Users and any and all activity on the Platform arising from use of an Authorized User’s login credentials. Customer must create an account to access the Cox Portal and Platform and use the Platform Services and is responsible for the information it provides to create the account, including but not limited to login credentials. Customer shall, and shall ensure that all Authorized Users, provide information on the Cox Portal that is accurate, complete, and not misleading. Cox shall have no responsibility for providing Customer with multiple accounts. Customer and the Authorized Users are entirely and fully responsible for maintaining the confidentiality of the login credentials of the Authorized Users, and preventing unauthorized use of the login credentials. Customer shall not allow multiple individuals to share one common login credential.   If notified by Customer of the need for additional logins, Cox will assign each Authorized User a unique user identification name and password for access to and use of the Platform.  Customer is solely responsible for all activities that occur under any Authorized User’s account, and will promptly notify Cox at support@coxedge.com upon becoming aware of any unauthorized use of login credentials, password issues, data breach, Authorized User complaint(s), loss of Customer Data or intellectual property or privacy claims. Customer acknowledges and agrees that Cox has no obligation or liability to Customer or any Authorized User for the Authorized Users’ usage of the Platform, Platform Services and/or Professional Services.  By using the Platform, Platform Services and/or Professional Services, an Authorized User may not bring any action against Cox in relation to the Platform or Platform Services. Customer agrees to hold harmless and indemnify Cox from and against any claim by an Authorized User, third party, and/or regulatory authority in connection with the use of the Platform by Authorized User(s). Customer shall pay any resulting judgment, fine, forfeiture, or settlement, and all costs, including reasonable attorney’s fees, and expenses related thereto.   

(c)  From time to time, Cox may apply upgrades, patches, bug fixes, or other maintenance to the Platform and Platform Services (“Maintenance”). Cox will use reasonable efforts to provide Customer with prior notice of any scheduled Maintenance (except for emergency Maintenance), and Customer shall comply with any Cox Maintenance requirements.  Cox reserves the right to temporarily remove Customer and any Authorized User from the Platform Services to perform regular or emergency Maintenance. Cox may provide the notice required under this Section 3.1(c) to Customer through any reasonable means including, without limitation, by providing notice through the Cox Portal or email. It is Customer’s responsibility to keep all contact information current, so Cox may reach you regarding maintence items or any other service-related communications. All maintenance will be performed in a workmanlike manner consistent with industry standards.     

(d)  In addition to Maintenance, Cox may make fixes, enhancements, or modifications to the Platform and any Platform Service(s), or any part thereof, or add new features or remove features, from time to time. Cox may, at Cox’s sole discretion, inform Customer, such as by posting a notice in the Cox Portal, if Cox makes a material change to the Platform and Platform Services that has a material impact on Customer's use of the Platform and/or Platform Services. When Cox introduces updates or modifications that are new (i.e., that were not previously included with Customer’s subscription to the Platform or Platform Services), at Cox’s direction, Cox and Customer shall negotiate in good faith to enter into additional terms, pricing changes or updates to this Business Agreement  that apply to Customer’s use of those new features, modifications or updates.

(e) Customer shall ensure that it and each applicable Authorized User has implemented back-up and recovery procedures adequate to prevent any harm from loss, or destruction of data or any portion of content and files and to prevent any business interruption or business loss of Customer or any Authorized User due to or in connection with the performance of (or any malfunction of) the Services. Cox has and shall have no liability to Customer or any third party, including, without limitation, any Authorized User, for any loss, unauthorized encryption, or destruction of any data or any portion of content or files or for any business interruption, lost profits, or other business loss, regardless of the cause. Customer acknowledges that as between Cox and Customer, Customer is solely responsible for the back-up, archival and recovery procedures, data availability architecture, and safeguards for the Customer and/or Authorized User software, applications, data, connectivity and equipment operated, maintained or provided by Customer and/or the Authorized User and the content, files, and associated data contained therein. Customer, not Cox, has sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and intellectual property rights of Customer data, content and files and Cox shall not be responsible or liable for the deletion, correction, destruction, damage, unauthorized encryption, loss or failure to store any of the foregoing.

(f) All references to "Customer" in this Business Agreement  shall apply to any Authorized User of the Service(s). If Customer allows Authorized Users to use the Services, Customer is responsible for ensuring that all such Authorized User comply with this Business Agreement . Customer is responsible for ensuring that all accounts and alternative accounts associated with Customer’s principal account comply with this Business Agreement . In the event of a suspected violation of this Business Agreement , Customer will cooperate with Cox and will promptly provide Cox with information about Customer’s Authorized Users upon request from Cox. Cox may suspend or terminate Services to Customer or the applicable Authorized User if Cox, in its sole discretion, determines or receives a complaint that an Authorized User has violated or is violating this Business Agreement .

3.2 Professional Services.
(a)  The scope of Professional Services to be performed by Cox shall be limited to those specified in the applicable SOW. Customer may not request any change to the Professional Services, including to the personnel assigned by Cox to deliver the Professional Services, except as Cox may, but shall not be required to, agree upon in writing.   Cox may subcontract or delegate all or any portion of providing the Platform Services to any third parties, entities, and/or individuals without Customer's prior consent.   

(b)  Customer will provide reasonable and timely cooperation in connection with Cox’s provision of the Professional Services. Cox will not be liable for a delay caused by Customer’s failure to provide Cox with information, materials, consents or access (physical or logical) to Customer Professional Services Data, facilities, networks or systems required for Cox to perform the Professional Services (“Customer Resources”). Cox shall have no liability, and shall not be responsible for the content, accuracy, completeness and consistency of the Customer Resources. If Cox informs Customer of such failure and Customer does not cure the failure within ten (10) days, then Cox may terminate the Professional Services without liability to Cox, and Customer shall remain responsible for all Fees under the applicable SOW. Customer consents to Cox’s sharing of any Customer Resources,  Customer Data and/or Customer Content with Cox’s suppliers and subcontractors, but solely for the performance of the Professional Services and Platform Services.   

(c)  The Professional Services shall be deemed accepted by Customer upon Cox’s completion of the Professional Services, except subject to any acceptance testing otherwise agreed upon by the Parties in an applicable SOW. Fees for the Professional Services are not refundable once accepted.

(d)  Customer is responsible for any consents and notices required to permit Customer’s use and receipt of the Professional Services.   

(e)  The Professional Services may include advisory services from Cox, and all such advisory services are recommendations only. Customer is responsible for the results achieved when determining whether to implement recommendations from Cox. Cox may deliver recommendations to Customer in the form of a working paper or report, which Customer may use, modify and reproduce only for Customer’s internal business purposes.   

(f)  All Professional Services and technical support provided by Cox pursuant to this Business Agreement  will be provided in the English language except as otherwise agreed upon separately by the Parties.

3.3 Restrictions on Platform Use.
(a)  Customer shall ensure that neither Customer nor any Authorized User(s) shall: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, reproduce, or timeshare in any way the Platform, Platform Services, Deliverables, Professional Services, or any part thereof, including those parts provided by Cox’s third party licensors and materials and documentation provided as a part of the Platform Services, except that Customer may sublicense rights to use the Platform, Platform Services, Professional Services or Deliverables to its affiliates as described in Section 3.1, but Customer’s affiliates may not sublicense these rights; (ii) (except with respect to a Customer Application), provide on a service bureau basis, or otherwise commercially exploit, or make available or allow any third party other than an Authorized User to access any part of the Platform, Platform Services, or Deliverables in any way; (iii) except as otherwise permitted herein, modify or make derivative works based on any part of the Platform or Platform Services; (iv) decipher, decompile or reverse engineer any other part of the Platform or otherwise access or attempt to access any part of the Platform, Platform Services, or Deliverables in any manner not expressly permitted herein, including accessing any part of the Platform, Platform Services, or Deliverables in order to (A) build a competitive product or service, (B) build a product using ideas, features, functions or graphics similar to those of the Platform, or (C) view, download, or copy any code or algorithm or copy any ideas, features, functions or graphics of any other part of the Platform, Platform Services, or Deliverables;  (v) access or use the Platform, Platform Services, or Deliverables in any way intended to avoid incurring Fees or evade any access or use restrictions under the Business Agreement  or (vi) collect information or data from any individual without such individual’s express consent. Without limiting the generality of the foregoing, Customer must comply with, and may not work around, any technical limitations in a Platform and Platform Services that only allow Customer to use them in certain ways and Customer must comply with current technical documentation applicable to the Platform and/or Platform Services posted on the Cox Portal.   

(b)  Customer shall ensure that neither Customer nor any Authorized User(s) shall: (i) use the Platform, Platform Services, or Deliverables in violation of any Laws, including without limitation to send spam or otherwise duplicative or unsolicited messages in violation of Laws or in violation of applicable, if any, export control Laws; (ii) use the Platform to send or store, as determined by Cox, infringing, obscene, offensive, threatening, libelous, or otherwise unlawful, material that encourages harm to Cox or any third party, or tortious material, including Customer Content and including material that is harmful to children or, without limiting the foregoing, infringes on the copyright, trademark, moral rights, patent, rights of privacy, rights of publicity or any other intellectual property right of Cox or any third party; (iii) use the Platform, Platform Services or Deliverables in any way that could harm the Platform or any other customer’s use thereof, such as to send or store viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs within the Platform; (iv) interfere with or disrupt the integrity or performance of any part of the Platform or the data contained therein; (v) attempt to gain unauthorized access to any part of the Platform, its related systems or networks, any other customer’s account or to attempt to obtain any materials or information through any means not intentionally made available by Cox; (vi) use the Platform, Platform Services, Professional Services, or Deliverables for High Risk Uses; (vii) use the Platform, Platform Services, Professional Services, or Deliverables for materials or activities that are subject to the International Traffic in Arms Regulations (ITAR) maintained by the United States Department of State or that are otherwise subject to restriction or limitation on storage or export under other U.S. export control laws, including without limitation the Export Administration Regulations (EAR) administered by the United States Department of Commerce’s Beureau of Industry and Security (BIS); (viii) use the Platform to engage in cryptocurrency mining, host a cryptocurrency exchange, host a cryptocurrency wallet, or any other similar cryptocurrency-related activities; (ix) use or exploit the Platform and/or any Platform Service or Deliverable, or any portion thereof, in any application that directly competes with any product or service offered by Cox or an Affiliate; (x) develop, maintain, participate in the development of, or support any product, service, development tool, or software framework that directly competes with the Platform, Platform Services or Professional Services; (xi) use or exploit the Platform and/or Platform Services or Professional Services, or any portion thereof, in any manner that causes harm and/or disruption to the Platform, Platform Services, or Cox network; and/or (xii) use or exploit the Platform, Platform Services, and/or Professional Services, or any portion thereof, in any manner that violates this Business Agreement , including without limitation, the AUP or the Cox Edge Privacy Notice; or (xiii) to assist or encourage anyone to do any of the above.

(c)  Cox in its sole discretion reserves the right to suspend or terminate any Authorized User’s access to or use of the Platform, Platform Services, or Professional Services, or any portion thereof, with or without prior notice, and/or remove, disable access to, or modify any Customer Content or other resource in response to any violation or suspected violation of the terms and conditions contained in the Business Agreement  by Customer and/or any Authorized User, including, without limitation Section 3.3(a) and Section 3.3(b), the Cox Edge Privacy Notice, or the AUP. Without limiting the generality of the foregoing or Cox’s rights under the AUP, Cox may review any Authorized Users’ use of the Platform and Platform Services and any Customer Data to investigate any potential violation of this Business Agreement , including, without limitation Section 3.3(a) and Section 3.3(b), the Cox Edge Privacy Notice, or the AUP. Cox will have no liability to Customer or any Authorized User arising from any suspension or termination under this Section 3 or for any other reason.

(d)  Customer shall provide information or other materials related to Customer Content (including copies of any client-side applications) as reasonably requested by Cox to verify Customer’s compliance with the Business Agreement . Customer shall reasonably cooperate with Cox to identify the source of any problem with the Platform, Platform Services or Professional Services that Cox reasonably believes may be attributable to Customer Content or any end user materials that Customer controls.   

(e)  Without limiting anything else contained in this Section 3, if Customer or any officer, director, employee, agent, or other representative of Customer, including any Authorized User, becomes the subject of public disrepute, contempt, or scandal that in Cox’s sole discretion Cox determines affects Customer’s or Cox’s image or goodwill or if Customer or any officer, director, employee, agent, or other representative of Customer acts in a way that is widely deemed by members of the general public, to embarrass, offend, insult or denigrate individuals or groups or that will tend to shock, insult or offend the community or public morals or decency or otherwise prejudice Cox in general, as determined according to Cox’s sole discretion, then Cox may, upon notice through the Cox Portal or written notice to Customer, immediately suspend or terminate provision of the Platform, Platform Services and Professional Services to Customer and/or remove, disable access to, or modify any Customer Content.   

(f)  In addition to Cox’s rights of termination, suspension and takedown under Section 3.3(c) above, Cox may suspend any Authorized User’s access to the Platform, Platform Services or Professional Services and/or remove, disable access to, or modify any Customer Content or other resource if in its sole discretion: (a) Cox believes Customer's or any Authorized User's use of the Platform or Platform Services could adversely impact the Platform or Platform Services, other customers' or their authorized users' use of the Platform, Platform Services, Professional Services or the Cox network or servers used to provide the Platform and Platform Services; (b) there is suspected unauthorized third-party access to the Platform, Professional Services or Platform Services; (c) Cox in its sole discretion determines it is required to suspend Customer’s or an Authorized User’s access to the Platform or Platform Services and/or remove, disable access to, or modify any Customer Content or other resource to comply with Laws; or (d) if Cox believes there is a security risk. If Customer’s access to the Platform, Platform Services, and/or Professional Services is terminated under this Section 3.3(f), then, to the extent permitted under applicable Laws, Customer’s sole remedy shall be limited to Cox reimbursing Customer for Fees that Customer has prepaid to Cox, if any.   

(g)  Notwithstanding this Business Agreement ’s prohibition on High Risk Use, Customer shall design and implement Customer Application(s) and Customer Content such that, in the event of any interruption, defect, error, or other failure of the Platform, Platform Services or Professional Services, the safety of people, property, and the environment are not reduced below a level that is reasonable, appropriate, and legal, whether in general or for a specific industry. Customer agrees to defend, indemnify and hold Cox harmless from and against all damages, costs and attorneys' fees in connection with any claims arising from a violation of this Section 3.3(g), including any claims based in strict liability, or that Cox was negligent in designing or providing the Platform.

3.4 Customer End User Terms.

In order to provide services to Customer’s end users, Customer and Customer’s end users, if applicable, must validly agree to a binding, written agreement that contains the substance of the following requirements: (a) Customer is the sole provider of the Customer’s services; (b) Customer is responsible for providing any support to end users for Customer’s services; (c) Customer’s services will be provided by Customer to Customer’s end users under Customer’s terms of use and privacy policy;  (d) Customer is solely responsible for ensuring compliance with all applicable laws and audit standards, with respect to Customer’s provision and end users’ use of the Customer’s service;  (e) Customer and Customer’s End Users may not use the Platform to facilitate or engage in cryptocurrency mining; (f) Customer will disclaim any and all warranties in connection with the services, and Customer will disclaim the same with respect to Cox; and (g) Customer will disclaim liability and exclude damages in a way that is consistent with the provisions of any applicable agreement(s) between Customer and Cox.

3.5 Privacy and Security.
(a)  Customer shall take best efforts to ensure that neither Customer nor any Authorized User permits, intentionally or unintentionally, any unauthorized access to the Cox Portal or Platform.   
 
(b)  Customer is solely responsible for and shall maintain the security of the Customer Data, such as without limitation: (i) using the Platform and Platform Services to ensure a level of security appropriate to the risk in respect of the Customer Data; (ii) securing the Cox Portal and other account authentication credentials, systems, firewalls and devices Customer uses to access the Platform or Platform Services; and (iii) backing up its Customer Data as appropriate.   

(c)  Customer remains solely responsible for and shall ensure that all Customer Applications and other applications and programs hosted on the Platform are run in a secure manner such as, without limitation, by: (i) establishing access controls such as (A) to limit access to its information systems and the facility or facilities in which they are housed to properly authorized persons; (B) to prevent employees and others who should not have access from obtaining access; and (C) to remove access in a timely basis in the event of a change in job responsibilities or job status; (ii) providing change and configuration management, such as (A) establishing a process for documenting, testing and approving the promotion of changes into production and (B) a security patching process that requires patching systems in a timely manner based on a risk analysis; and (iii) using a reputable independent third party to conduct a security review of the source code of any such applications or programs (i.e., thorough white box testing). In the event a Customer would like to conduct a penetration test on or any security scanning of the infrastructure, Customer will need to request permission from Cox at support@coxedge.com to do so.   

(d)  Customer is solely responsible for and shall secure its virtual infrastructure, such as without limitation; (i) employing industry standard encryption mechanisms to materially protect and ensure the integrity of Customer Data and other materials; (ii) ensuring that firewalls shall be configured to deny all traffic except the traffic that is both required for business reasons and inspected in compliance with Customer’s security practices; (iii) maintaining and deploying an accurate asset management plan; and (iv) maintaining an information security program in compliance with applicable Laws.    In the event Customer chooses to federate access with its corporate network and/or form a trust relationship with the network, Customer takes on any liability if an attacker traverses from the Platform Services to Customer’s corporate network.    

(e)  Without limiting the foregoing, Customer is solely responsible for providing and collecting any required notices, consents and/or authorizations related to Customer’s provision of and processing of, Customer Content and Customer Data (including any personal information) on the Platform and processing any personal information in accordance with applicable law.

3.6 Reseller Terms.

The terms in this Section 3.4 apply if and only if Customer is authorized under a Service Order to be a reseller of the Platform or Platform Services (“Authorized Reseller”). If the Customer is an Authorized Reseller, then (i) “Authoried Users” as it is defined herein shall include Resell End Users and (ii) all terms and conditions herein, including those that apply to Authorized Users and Customer’s obligations and liabilities with respect to the same, shall apply equally to Resell End Users along with any obligaitons and liabilities identified in the applicable Service Order.

4. THIRD PARTY PRODUCTS

4.1 Third Party Licenses.
Certain Non-Cox Products distributed in connection with the Platform, Platform Services and Professional Services are licensed to Customer (not under the terms and conditions of this Business Agreement , but rather) pursuant to the terms and conditions of the applicable licenses that appear upon installation, acceptance and/or activation of the relevant product or other material and/or are contained or described in the corresponding release notes or other documentation. Customer shall review and abide by the terms and conditions, and policies incorporated therein, of such licenses. Except as otherwise may be provided herein, Cox, however, assumes no responsibility or liability whatsoever for any Non-Cox Product. Customer is solely responsible for any Non-Cox Product that it installs or uses in connection with Platform, Platform Services, Professional Services and/or Deliverables.

5. FEES & PAYMENTS

5.1 Fees.
The Fees for the Platform and Platform Services are as agreed upon in the applicable Service Order. Customer agrees that all Fees are payable only in U.S. dollars. Fees for the Professional Services are the hourly rates and bundled pricing for the Professional Services agreed upon by the Parties in the applicable SOW.   

5.2 Invoicing.
Cox shall issue invoices for the Platform and Platform Services based on the Fees incurred during the applicable month or as otherwise set forth in the applicable Service Order. For Platform Services that are not billed on a recurring charge-basis, Fees shall be incurred upon completion of the Platform Service(s) by Cox. With respect to the Professional Services, Cox shall issue invoices at the frequency and in the manner specified in the applicable SOW. Subject to Section 5.3 below, Customer shall pay all Fees within thirty (30) calendar days from Cox’s issuance of the applicable invoice.   

5.3 Billing Disputes.

Cox's measurement of Customer's use of the Platform, Platform Services and Professional Services is final. Fees reasonably disputed by Customer in good faith shall not be due and payable for a period of thirty (30) days following the invoice due date (“Due Date”) for such charges, provided Customer: (i) pays all undisputed charges on or before the Due Date, (ii) presents a written statement of any billing discrepancies to Cox in reasonable detail together with appropriate supporting documentation on or before the Due Date of the invoice in question, and (iii) negotiates in good faith with Cox for the purpose of resolving such dispute within said thirty (30) day period. In the event such dispute is mutually agreed upon and resolved in favor of Cox, Customer agrees to pay Cox the disputed amounts together with any applicable late fees within ten (10) days of the resolution (the “Alternate Due Date”). If such dispute is mutually agreed upon and resolved in favor of Customer, Customer will receive a credit for the disputed charges on the following month’s invoice. If Cox has responded to Customer’s dispute in writing and the Parties fail to mutually resolve or settle the dispute within such thirty (30) day period (unless Cox has agreed in writing to extend such period), all disputed amounts together with the late fees shall become due and payable, and this provision shall not be construed to prevent Customer from pursuing any legal remedies as provided in this Business Agreement . Cox shall not be obligated to consider any notices of billing discrepancies from Customer which are received by Cox more than thirty (30) days following the Due Date of the invoice in question. Cox reserves the right to invoice and collect any amounts that it failed to bill or collect in previous invoices at any time.   

5.4 Taxes.
The Fees are exclusive of taxes and similar assessments. Customer is responsible for all sales, use and excise taxes, and any other similar taxes, duties, charges, and surcharges of any kind imposed on any amounts payable by Customer hereunder, other than any taxes imposed on Cox’s income.   

5.5 Support.
Customer is responsible for providing technical support of its Customer Applications and to its customers. Cox will provide technical support to Customer during the Term in accordance with the support policies made available to Customer through the Cox Portal or as otherwise agreed upon by the Parties in writing.

6. PROPERTY RIGHTS

6.1 Ownership Rights.   
As among Cox, Customer, and the Authorized Users, all right, title and interest in and to the Platform, Platform Services, Deliverables or any portion thereof, including modifications, enhancements, and derivations thereof, and all intellectual property rights, including patents, copyrights, trademarks, trade secrets, and other intellectual property and proprietary rights (“Intellectual Property”) in and to the foregoing belong to and are retained solely by Cox. Except as permitted by and subject to this Business Agreement , Customer may not reference Cox or its Affiliates, the Platform Services or Professional Services (or any component thereof) or any of Cox’s Intellectual Property on its marketing materials, social media, or web sites without Cox’s prior written approval. Except for the express rights granted in this Business Agreement , there are no other rights or licenses granted to Customer or the Authorized Users, express, implied, or by way of estoppel in or to the Cox Portal, Platform or Platform Services.  All rights not granted in the Business Agreement  are reserved by Cox.   

6.2 Ownership of Feedback.     
Cox will own any suggestions for improvements or changes, ideas, feedback, error identifications, or other information related to the Platform, Platform Services or Professional Services, including any Beta versions thereof, or the use thereof provided, whether orally or in writing, by Customer or the Authorized Users (“Feedback”). Without limiting the foregoing, Cox and its Affiliates may use Feedback without restriction and without obligation to Customer. Customer providing Feedback is voluntary and Cox is under no obligation to post or use any Feedback. Customer warrants that 1) it will not provide Feedback that is subject to a license requiring Cox to license anything to third parties because Cox exercises any of the above rights in Feedback; and 2) it owns or otherwise controls all of the rights to such Feedback and that no such Feedback is subject to any third-party rights (including any personality or publicity rights). If Customer offers a service competitive to the Platform, Platform Services or Professional Services, by using the Platform, Platform Services or Professional Services, Customer agrees to waive any restrictions on competitive use and benchmark testing in the terms governing its competitive service. If Customer does not intend to waive such restrictions in its terms of use, Customer may not use the Platform, Platform Services or Professional Services.   

6.3 Notice of Infringement.
With respect to Customer’s use of the Platform and Platform Services, Cox assumes no responsibility, and Customer assumes all risk regarding the determination of whether material, including any Customer Content, is in the public domain, or may otherwise be used by Customer or any Authorized Users for any purpose. Cox will respond to notices of alleged copyright infringement, and in the event that Cox receives a claim of infringement from a copyright owner, Cox may, but shall not be required to forward one or more such notices directly to Customer. Nothing in this Section 6.3 limits Cox’s rights and powers to inspect Customer Content or take other action as permitted under the Business Agreement . Consistent with federal law, Cox may suspend and, in appropriate circumstances, terminate any Customer or Authorized User who is a copyright infringer.  For more information regarding Cox’s policies and procedures addressing copyright infringement, please visit  https://www.cox.com/aboutus/policies/copyright.html.

7. REPRESENTATIONS AND WARRANTIES

7.1  Warranties.
Customer represents and warrants the following: (a) Customer shall comply with all Laws, including any privacy and data security Laws, in the performance of its obligations and exercise of its rights under the Business Agreement  and its receipt and use of the Platform, Platform Services or Professional Services; (b) the execution, delivery and performance of the Business Agreement  by Customer (i) has been duly authorized by Customer and (ii) will not conflict with, result in a breach of or constitute a default under any other agreement to which Customer is a party or by which Customer is bound; (c) that neither Customer nor any Authorized Users are natural persons located in the United Kingdom or European Economic Area; and (d) Customer has all rights, licenses, consents and permissions required for Customers and/or any Authorized User’s use of any software, applications, and any other content, including any Customer Application(s) that Customer or any Authorized User uploads to, runs on, stores in, creates, or uses in connection with the Platform (“Customer Content”), and agrees and understands that Customer remains fully responsible for Customer Content. Cox represents and warrants to Customer as follows: (i) Cox and/or the applicable Affiliates are duly authorized to provide the Services; (ii) by entering into this Business Agreement  with Customer, Cox shall not be in violation of any agreement it has with a third-party relating to the provision of Services; and (iii) Cox is a duly organized entity in the State of Delaware.

7.2 Further Warranties.
Without limiting Customer’s obligations in Sections 3.3 and the representations and warranties under Section 7.1 herein, Customer represents and warrants that Customer and/or any of Customer’s Authorized Users shall not, under any circumstance, sell, resell, export, re-export, transfer, distribute, dispose of, disclose, download, access or make available any Customer Content, Customer Data, Confidential Information, the Cox Portal, Platform Services, Professional Services, Deliverables and/or the Platform, directly or indirectly, to:

 

  • any person or entity located or based in Cuba, Iran, North Korea, or Syria, the Crimea region or in any other country or region subject to similar comprehensive U.S. sanctions imposed by the U.S. Office of Foreign Assets Control ("OFAC") from time to time, or in any other destination for which specific authorization would otherwise be required under the EAR or other applicable Laws ("Prohibited Countries"), or any person, directed by, or acting on behalf of the governments of such Prohibited Countries, or any entity owned or controlled by, directed by, or acting on behalf of the governments of such Prohibited Countries;
  • any residents or nationals of Prohibited Countries, other than such nationals lawfully admitted for permanent residence in other countries;
  • any companies, organizations, entities or individuals designated as restricted or prohibited parties on the U.S. OFAC List of Specially Designated Nationals and Other Blocked Persons (available at (http://www.treasury.gov/resource-center/sanctions/SDN-List/Pages/default.aspx)), the U.S. Commerce Department's Denied Persons List, Entity List or Unverified List and other similar country and/or multinational organization (i.e., European Union and United Nationals Lists) published sanctioned/ prohibited end-user lists, in force from time to time and if applicable;
  • any person for use in any application involving any High Risk Use, such as the design or development of nuclear, chemical, or biological weapons or delivery systems such as missile technology, or military use in a country which is subject to an arms embargo, or for use in any terrorist-supporting activities; or
  • without the prior written approval of Cox, any person or entity outside of the United States.   

Customer, itself, shall not access any Customer Content, Customer Data, Confidential Information, the Cox Portal, Platform Services, Professional Services, Deliverables and/or the Platform from a Prohibited Country. Customer shall notify Cox in writing immediately upon the occurrence of any event in violation of the foregoing representations and warranties. Failure by Customer to comply with any of the foregoing representations and warranties shall entitle Cox to suspend or terminate Customer’s or any Authorized User’s access to or use of the Platform, Platform Services, or Professional Services, or any portion thereof, with or without prior notice.

7.3 Without limiting any disclaimer set forth in the Business Agreement , no service level agreement applies to the Services.    

7.4 Disclaimers.
EXCEPT AS SPECIFICALLY SET FORTH IN THE AGREEMENT, THE PLATFORM, COX PORTAL, PLATFORM SERVICES, AND PROFESSIONAL SERVICES ARE PROVIDED ON AN “AS IS” AND “WHERE AVAILABLE” BASIS. EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED HEREIN, COX MAKES NO REPRESENTATIONS OR WARRANTIES AND HEREBY SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS AND WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES ARISING BY COURSE OF DEALING OR CUSTOM OR TRADE, WITH RESPECT TO THE PLATFORM, PLATFORM SERVICES OR PROFESSIONAL SERVICES OR THAT ACCESS TO OR USE OF THE PLATFORM, PLATFORM SERVICES OR PROFESSIONAL SERVICES WILL BE ERROR-FREE, DELAY-FREE OR UNINTERRUPTED. WITHOUT LIMITING THE FOREGOING, COX HEREBY SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES (I) AS TO THE ACCURACY, TIMELINESS, QUALITY, TRUTH, AVAILABILITY, RELIABILITY, UPTIME (EXCEPT AS MAY BE PROVIDED IN ANY SLA) OR SUITABILITY OF THE PLATFORM, PLATFORM SERVICES OR PROFESSIONAL SERVICES, (II) THAT THE PLATFORM, PLATFORM SERVICES OR PROFESSIONAL SERVICES WILL MEET THE REQUIREMENTS OR EXPECTATIONS OF CUSTOMER OR THE AUTHORIZED USERS, (III) THAT THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY CUSTOMER OR THE AUTHORIZED USERS VIA THE PLATFORM SERVICES WILL MEET THEIR EXPECTATIONS OR REQUIREMENTS, (IV) THAT THE PLATFORM, PLATFORM SERVICES OR PROFESSIONAL SERVICES WILL (A) BE COMPATIBLE WITH ANY PLATFORM OTHER THAN THAT EXPLICITLY LISTED IN DOCUMENTATION PROVIDED TO CUSTOMER BY COX, OR (B) PROVIDE ANY PARTICULAR OUTCOME; AND (V) THAT DEFECTS IN THE PLATFORM, PLATFORM SERVICES OR PROFESSIONAL SERVICES, IF ANY, WILL BE CORRECTABLE OR CORRECTED.    

7.5 ADDITIONAL DISCLAIMERS; PERFORMANCE OF THE PLATFORM AND PLATFORM SERVICES.

(a)  PERFORMANCE OF THE PLATFORM AND CUSTOMER’S RECEIPT OF THE PLATFORM SERVICES AND PROFESSIONAL SERVICES, INCLUDING ANY NON-COX PRODUCT MADE AVAILABLE THEREON, IS SUBJECT TO, AND COX SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR, INTERNET AVAILABILITY AND SPEED, EQUIPMENT, ELECTRIC POWER OR OTHER UTILITIES AND OTHER VITAL INFRASTRUCTURE, AND OTHER CAUSES BEYOND THE REASONABLE CONTROL OF COX OR ITS AFFILIATES. CUSTOMER IS RESPONSIBLE FOR ANY STORAGE OR THROUGHPUT ON ITS ACCOUNT AS WELL AS ANY APPLICABLE PROCESSING CHARGES.    
 
(b)  Neither Cox nor its suppliers guarantee compliance with any particular security standard. Customer acknowledges that Customer is solely responsible for ensuring that the capture, transfer, storage and use/deployment of all data, content and files: (i) complies with the requirements of all privacy and data security Laws  regarding data included in the content or files; (ii) is authorized and permitted under the applicable law of the territory (or territories) in which the Services are used; and (iii) does not violate, infringe upon or misappropriate the intellectual property rights or other personal or proprietary rights of any person or entity or violate the terms of any agreement of the Customer with any third party. Cox is not responsible for being aware of, and shall have no liability for compliance by Customer with applicable laws, including, without limitation, data security or regulatory compliance regarding any data, content, or files captured and/or provisioned by use of the Services.     

(c)  Customer acknowledges that the Platform, Platform Services and Professional Services (1) are not designed, intended or made available as a medical device(s), and (2) are not designed or intended to be a substitute for professional medical advice, diagnosis, treatment, or judgment and should not be used to replace or as a substitute for professional medical advice, diagnosis, treatment, or judgment. Customer is solely responsible for displaying and/or obtaining appropriate consents, warnings, disclaimers, and acknowledgements to end users of Customer’s products and services.

(d) Except as otherwise may be provided herein, Cox bears no responsibility for Customer’s compliance with any Laws, including Laws governing Customer’s transmittal of promotional communications or data protection.    

(e)  Cox may, in its sole discretion, subcontract or delegate all or any portion of providing the Platform, Platform Services and/or Professional Services or any of its obligations under this Business Agreement  to any third parties, entities, and/or individuals without Customer's prior consent. Customer consents to Cox’s sharing any Customer Data, Customer Content, Professional Services Data and any other information or access provided by Customer to Cox hereunder with such third parties as necessary or helpful for the performance of Cox’s obligations under the Business Agreement , provided that Cox agrees to require such third parties to meet substantially equivalent confidentiality and security requirements to those contained herein, as applicable.    

(f)  Protected Health Information, Sensitive Information and Credit Card Information.
Customer agrees that the Platform, Platform Services and Professional Services shall not be used by Customer or any Authorized User for any patient or protected health information, any Sensitive Personal Information or any credit card information, and that no such information shall be provided to Cox by Customer or any Authorized User.  It is Customer’s responsibility to adequately protect any patient or protected health information, Sensitive Personal Information and any credit card information. Customer shall indemnify, defend, and hold harmless Cox from any third party claims, including without limitation, claims from Customer’s patients or end users, or the Department of Health and Human Services, or any other regulatory agency or person, that arise, in whole or in part, from Customer’s use of the Platform, Patient Services or Professional Services in violation of HIPAA, PCI or any other privacy or security Laws. Under this Business Agreement , Cox is not and does not intend to be a business associate as that term is defined under the Health Insurance Portability and Accountability Act of 1996 (HIPAA; Pub.L. 104–191, 110 Stat. 1936, enacted August 21, 1996) regulations (“HIPAA”).

8. CONFIDENTIALITY

8.1 General Confidentiality Obligations.
Neither Party shall use or disclose Confidential Information of the other Party (in any form) to or for the benefit of any person without the other Party’s prior written consent, and shall hold all such Confidential Information in strict confidence. “Confidential Information” means all non-public or proprietary information relating to Cox, Affiliates, or Cox’s licensors, vendors, or business partners or Customer, its affiliates, or licensors, vendors or business partners, which at the time of disclosure (i) is marked as “Confidential” or “Proprietary”, (ii) is otherwise reasonably identifiable as the confidential or proprietary information or (iii) should reasonably be understood to be confidential or proprietary information given the nature of the information and the circumstances surrounding its disclosure. A Party’s Confidential Information shall not include information that is (a) in the public domain through no fault of the other Party; (b) obtained by the other Party independently from a third party without an obligation of confidentiality and without breach of the Business Agreement ; or (c) independently developed by the other Party without reference to the other Party’s Confidential Information.  For the avoidance of doubt, the Platform Services shall be deemed to be Confidential Information of Cox.    

8.2 Survival.
For Confidential Information that does not constitute “trade secrets” under applicable Laws, these confidentiality obligations will expire three (3) years after the termination or expiration of the Business Agreement . For Confidential Information that constitutes a “trade secret” under applicable Law, these confidentiality obligations will continue until such information ceases to constitute a “trade secret” under such applicable Law.    

8.3 Permitted Disclosure.
Notwithstanding Section 8.1, each Party shall be permitted to disclose relevant aspects of the other Party’s Confidential Information to its employees, contractors, and agents, to the extent such disclosure is not restricted under any Laws or the Business Agreement  and only to the extent that such disclosure is reasonably necessary for the performance of the Party’s duties and obligations under the Business Agreement ; provided, that for each such disclosure the disclosing Party shall cause the Confidential Information to be protected, held in confidence and only used by any such recipient for the purposes permitted under the Business Agreement . Moreover, a Party may use and/or disclose the other Party’s Confidential Information to assert or defend the Party’s legal rights.     

8.4 Compelled Disclosure.
If a Party is required by Law to disclose any Confidential Information, each Party (to the extent it is legally permitted) shall give prior notice to the other Party so that the non-disclosing Party or its designee may seek an appropriate protective order or other remedy or waive the provisions of the Business Agreement , and the disclosing Party shall cooperate with the non-disclosing Party or such designee to obtain such protective order.  In the event that such protective order or other remedy is not obtained, the disclosing Party shall furnish only that portion of the Confidential Information which is legally required to be disclosed and upon the non-disclosing Party’s request, obtain assurances that confidential treatment shall be accorded to such Confidential Information.    

8.5 Remedies.
The Parties agree that a breach of Section 8 will result in the substantial likelihood of irreparable harm and injury to the other Party for which monetary damages alone would be an inadequate remedy, and which damages are difficult to measure accurately.  Accordingly, the Parties agree that the non-breaching Party shall have the right, in addition to any other remedies available, to obtain immediate injunctive relief as well as other equitable relief allowed by the federal and state courts.  The foregoing remedy of injunctive relief is agreed to be without prejudice to a Party’s right to exercise any other rights and remedies it may have, including the right to terminate the Business Agreement  and seek damages or other legal or equitable relief.    

8.6 Cox Right to Audit.
Customer agrees that Cox or its designated representative shall have the right to review and to copy any books, records, files, accounts and supporting documentation, including without limitation, stored information, data traffic, or security feature, solely pertaining to Customer’s: (i) use of the Platform, Platform Services, and Professional Services, (ii) obligations under this Business Agreement  including without limitation payment obligations and compliance with applicable Laws, and (iii) in response to any request for information or audit request from any governmental or regulatory authority. Cox’s audit right hereunder shall last during the Term and for five (5) years thereafter. Customer agrees to allow the auditor(s), whether Cox or its designated representative, access to such records during normal business hours upon five (5) days’ notice from Cox. Cox and its designated representatives shall treat all information that it receives under this Section 8.6 in accordance with the confidentiality provisions contained herein.

9. DATA OWNERSHIP AND USAGE

9.1 Ownership and Right to Use of Customer Data.
(a)  Customer Data is and shall remain the property of Customer.  During the Term, Customer hereby grants Cox and Affiliates the right and license to use, copy, store, disclose and modify the Customer Data to provide the Platform, Platform Services, and Professional Services as otherwise necessary for managing Cox’s business, to comply with Law or legal proceeding(s), and to enforce or defend legal claims, including without limitation the enforcement of this Business Agreement .    

(b)  Customer shall ensure that (i) its privacy policy (and any other applicable policies or disclosures) governing its information usage practices with respect to Customer Data, Customer Content, and other information permits Cox and its Affiliates to access and use the Customer Data, Customer Content, and other information as necessary to provide the Platform, Platform Services and Professional Services and (ii) it has obtained consents required by Laws, if any, to facilitate Cox’s provision of the Platform, Platform Services and Professional Services.    

9.2 Rights to Aggregate Data.
Notwithstanding anything to the contrary contained in Section 9.1, Cox, its Affiliates and their third party suppliers and providers shall have a perpetual, irrevocable right to use in any manner or disclose any aggregated data or information derived from the access to or use of the Platform Services or Professional Service by Customer or the Authorized Users; provided, however, that any disclosure to a third party by Cox of such data or information will be in compliance with the Cox Edge Privacy Notice (including applicable de-identification terms set forth in the Cox Edge Privacy Notice).

9.3 Ownership and Rights of Platform and Platform Service.
The Platform, Platform Services and Professional Services and shall remain the property of Cox and/or its Licensors and Customer, its affiliates or its Authorized Users shall not receive any ownership interest in or to the Platform, Platform Services or Professional Services.  Any customizations or modifications to the Platform, Platform Services or Professional Services requested or developed by the Customer or an Authorized User are the property of Cox and Customer or Authorized User hereby assigns all rights, title and interest in or to any such customizations or modifications. All rights not expressly granted to Customer by Cox are reserved by Cox.

10. INDEMNIFICATION

10.1 Customer Indemnities.
Customer shall defend upon demand, indemnify, and hold harmless Cox, its Affiliates, and their respective officers, directors and employees (the “Cox Indemnitees”) from and against any losses, liabilities, damages, claims, suits, costs and expenses (including the reasonable fees of professional advisors) resulting from any third party claim: (a) by or on behalf of an Authorized User; (b) for which any Cox Indemnitee, as a result of any act, omissions or breach of the Business Agreement  by Customer or any Authorized Users, may be required to indemnify, defend or hold harmless any third party, that is brought against a Cox Indemnitee arising out of any improper use of the Platform Services or any infringement of any third party’s rights with respect to Customer’s or any Authorized Users’ use, copying, modification, distribution, display or other activity relating to any Platform Services; (c) arising from use by Customer or any Authorized User of the Platform, Platform Services, Customer Content, or Professional Services (or any component thereof) in violation of the Business Agreement  or in a manner not intended by this Business Agreement , including without limitation the AUP, the applicable third party terms, or Laws; (d) arising out of a breach by Customer or any Authorized User of Section 8; or (e) relating to gross negligence or intentional misconduct by Customer or the Authorized Users.    

10.2 Infringement.
Except as otherwise provided in this Business Agreement , Cox shall indemnify Customer, its officers, directors, employees, and Authorized Users (“Customer Indemnitees”), for any and all liabilities, judgments, claims, losses, obligations, damages, penalties, actions, or other proceedings, suits, costs, fees, expenses and disbursements, whether by judgment or settlement,  arising out of, relating to or resulting from allegations that any of the Services infringes a third party’s intellectual property or other proprietary rights (“Infringement Claim”). Cox will not be obligated to indemnify Customer Indemnitees to the extent that the Infringement Claim results from Customer or its Authorized Users’ (i) modification of the Platform Service or Platform (ii) use of the Platform or Platform Service in breach of the Business Agreement  or AUP, (iii)  combining of the Platform or Platform Services with a service, software or equipment not provided by Cox, or (iv) failure to implement any updates, releases or fixes for the Platform provided by Cox. If Cox becomes aware of a claim that any part of the Services becomes subject to an Infringement Claim, or if Cox believes such an Infringement Claim is likely, Cox may, in its sole discretion, either (i) appropriately modify the Platform, Platform Services or Professional Services or substitute a non-infringing version of the allegedly infringing component, (ii) obtain a license that allows Customer’s continued use of the Platform, Platform Services or Professional Services, (iii) require Customer to immediately cease using the Platform, Platform Services, or Professional Services or (iv) cease offering all or part of the Platform, Platform Services, or Professional Services without liability. The obligations set forth in this Section 10.2 shall constitute Cox’s entire liability and Customer’s sole remedy for any actual or alleged Infringement Claim.

11. TERMINATION RIGHTS

11.1 Termination for Cause.
Except with respect to Cox’s rights to immediately suspend or terminate Cox’s provisions of the Platform, Platform Services and/or Professional Services and to takedown any Customer Content, either Party may terminate the Business Agreement  immediately upon notice to the other Party if such other Party commits a material breach of the Business Agreement  and, if such breach is capable of cure, fails to cure such breach within thirty (30) days after written notice thereof. Without limiting Cox’s suspension rights under Section 5.3 hereto, Cox may terminate the Business Agreement  in the event of Customer’s violation of Customer’s payment obligations hereunder upon ten (10) days’ written notice to Customer.    

11.2 Termination Relating to Services.
Cox may elect in its sole direction to cease providing the Platform Services, Professional Services, the Platform, or any feature thereof, or make a backwards-incompatible modification, at any time. If Cox ceases to provide any Platform Service(s), Professional Services, the Platform, or any feature thereof, including any backward-incompatible change, Cox will have the right to, in its sole discretion, terminate the availability of the Platform Services, Professional Services, Platform, or any feature thereof, upon notice to Customer. This section shall not limit Cox's ability to make changes required to comply with applicable law, address a security risk, or avoid a business or technical burden.    

11.3 Termination for Bankruptcy.
Cox may terminate the Business Agreement  upon written notice to Customer if Customer: (a) ceases doing business in the normal course; (b) is the subject of any state or federal proceeding (whether voluntary or involuntary) relating to its bankruptcy, insolvency or liquidation that is not dismissed within ninety (90) days; or (c) makes an assignment for the benefit of creditors or a receiver is appointed for a substantial part of the other Party’s assets.    

11.4 Termination for Convenience.
Either Party may terminate this Business Agreement  for its convenience at any time upon at least 30 days' prior notice to the other Party. If Customer terminates under this Section 11.4 before the expiration of Service Order(s), then Customer shall be liable for a termination fee in the amount of One Hundred Percent (100%) of the monthly recurring charges for the terminated Service(s) multiplied by the number of months remaining in the Service Order Term (as that term is used in the applicable Service Order) of the applicable Service Order(s).    

11.5 Cross-Termination.
Cox and its Affiliates may terminate all Business Agreements then in effect between Customer and Cox or its Affiliate if any such Business Agreement  then in effect is terminated.    

11.6 Effect of Expiration or Termination.
Immediately upon any termination or expiration of the Business Agreement  for any reason, Customer and the Authorized Users shall cease all access to and use of the Platform and Platform Services. Prior to termination, Customer shall remove any associated data or Customer Content.  Otherwise, if Customer’s account is terminated, under any provision of this Section 11, Customer acknowledges and agrees that Cox may, in its sole discretion, permanently delete Customer’s account and all the data associated with it, including any Customer Content.  Customer shall be responsible for the payment of all Fees with respect to Customer’s access to and use of the Platform Services and Professional Services performed through the effective date of termination.

12. LIMITATIONS OF LIABILITY

12.1 Damages Cap.
EITHER PARTY’S AND ITS AFFILIATES’ TOTAL AGGREGATE LIABILITY TO THE OTHER PARTY (OR ANY OTHER PERSON OR ENTITY (INCLUDING AUTHORIZED USERS)) FOR ANY AND ALL CLAIMS AND DAMAGES ARISING FROM OR OUT OF THE AGREEMENT (WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, BREACH OF WARRANTY, OR OTHERWISE) SHALL IN NO EVENT EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO COX DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DAY THE FIRST ACT OR OMISSION OCCURRED THAT GAVE RISE TO SUCH LIABILITY.  NOTWITHSTANDING THE FOREGOING, COX AND ITS AFFILIATES SHALL HAVE NO LIABILITY TO CUSTOMER, ANY AUTHORIZED USER OR ANY OTHER PERSON OR ENTITY (INCLUDING AUTHORIZED USERS) ARISING FROM OR RELATED TO THE UNAUTHORIZED OR ACCIDENTAL DESTRUCTION, LOSS, ALTERATION OF OR ACCESS TO CUSTOMER DATA, CUSTOMER CONTENT, OR CUSTOMER APPLICATIONS.    

12.2 Consequential Damages.
NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY OR ANY AUTHORIZED USER, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, BREACH OF WARRANTY, OR OTHERWISE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, RELIANCE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO ITS PERFORMANCE OR FAILURE TO PERFORM UNDER THE AGREEMENT, INCLUDING LOSS OF REVENUE, BUSINESS PROFITS, INTEREST OR ANTICIPATED SAVINGS, LOSS OF GOODWILL OR REPUTATION, LOSS OF OR DAMAGE TO RECORDS OR DATA, PENALTIES, COST OF REPLACEMENT SERVICES, OR THIRD PARTY CLAIMS FOR LOSS OR DAMAGE OR OTHER COMPENSATION ARISING FROM ANY ACT OR OMISSION BY THE PARTY OR ITS AFFILIATES, OFFICERS, AGENTS, OR EMPLOYEES, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES. COX IS NOT RESPONSIBLE OR LIABLE FOR ANY INCORRECT OR INACCURATE INFORMATION ENTERED ON THE PORTAL OR OTHERWISE PROVIDED TO COX BY CUSTOMER OR ANY AUTHORIZED USER, AND ASSUMES NO RESPONSIBILITY FOR (I) ANY ERROR, OMISSION, INTERRUPTION, DEFECT, DEGRADATION OR DELAY IN OPERATION OR TRANSMISSION AT ANY WEBSITE, (II) COMMUNICATIONS LINE, INTERNET, TRANSPORT, POWER, HARDWARE AND/OR SOFTWARE FAILURES, OR (III) DAMAGE TO ANY COMPUTER OR DEVICE (SOFTWARE OR HARDWARE) RESULTING FROM USE OF THE PLATFORM, PLATFORM SERVICES OR PROFESSIONAL SERVICES.    

12.3 Essential Element.
Each Party acknowledges and agrees that the provisions of the Business Agreement  that limit liability, disclaim warranties, and/or exclude consequential damages or other damages or remedies are essential terms and are fundamental to the Parties’ understanding regarding allocation of risk.  Accordingly, such provisions shall be independent of any other provisions of the Business Agreement  and shall be enforced regardless of any breach hereof or other occurrence or condition relating in any way to the Business Agreement .  Without limiting the generality of the foregoing, EACH PARTY AGREES THAT ALL LIMITATIONS OF LIABILITY, DISCLAIMERS OF WARRANTIES, AND EXCLUSIONS OF CONSEQUENTIAL DAMAGES OR OTHER DAMAGES OR REMEDIES SHALL REMAIN FULLY VALID, EFFECTIVE AND ENFORCEABLE IN ACCORDANCE WITH THEIR RESPECTIVE TERMS, EVEN UNDER CIRCUMSTANCES THAT CAUSE ANY EXCLUSIVE REMEDY UNDER THE AGREEMENT TO FAIL OF ITS ESSENTIAL PURPOSE.

13. PROPERTY RIGHTS

13.1 Independent Contractor.    
NOTHING IN THE AGREEMENT IS INTENDED TO CREATE ANYTHING OTHER THAN AN INDEPENDENT CONTRACTOR RELATIONSHIP BETWEEN THE PARTIES. NO PARTNERSHIP, FRANCHISE, JOINT VENTURE, EMPLOYMENT OR ANY OTHER FORM OF AGENCY RELATIONSHIP EXISTS OR IS IMPLIED BETWEEN CUSTOMER AND COX. Neither Party will bind or commit the other to any obligation, or incur any charge or expense for, or in the name of, the other without the other Party’s prior written consent. No officer, director, employee, Affiliate or agent of either Party shall be deemed to be an employee or agent of the other Party.    
 
13.2 Assignment.
Customer will not, without Cox’s prior written consent, assign or otherwise transfer any of its rights or delegate any of its duties pursuant to the Business Agreement . Any attempted assignment in violation of this Section 13.2 will be null and void and of no force or effect. Cox may assign, transfer, or delegate all or a portion of its rights and obligations under the Business Agreement , without Customer’s consent.    
 
13.3 Waiver.
The omission or delay enforcing or exercising any provision of the Business Agreement  shall not be deemed, and shall not constitute, a waiver of such provision or any other provision and no course of dealing shall operate as a waiver of any right, power, or privilege available under the Business Agreement .

13.4 Recruitment of Personnel.    
During the Term and for a period of one (1) year thereafter, Customer shall not engage or offer employment to any employee of Cox with whom Customer has had contact arising out of or in connection with this Business Agreement , including without limitation, Cox’s provision of the Professional Services.

13.5 Severability.
The provisions of the Business Agreement  are severable, and if any clause or provision of the Business Agreement  is declared by any court of competent jurisdiction to be invalid or unenforceable for any reason, such invalidity or unenforceability shall not affect the remaining provisions.    

13.6 Notices.
Except as otherwise provided herein, all notices, requests, demands, or other communications under the Business Agreement  shall be in writing and shall be deemed to have been duly given on the date of service if served personally on the Party to whom notice is to be given. With respect to notice to Cox, by first class mail, registered or certified, postage prepaid, and addressed to Cox Edge Customer Success Team, 6205B Peachtree Dunwoody Road, 3rd Floor, Atlanta, GA  30328, with a copy to 6205-B Peachtree Dunwoody Road, Atlanta, Georgia 30328, ATTN: Legal Department. With respect to notice to Customer by first class mail, registered or certified, postage prepaid, and addressed to the address listed on the applicable Service Order.  Cox may change its address indicated above by giving Customer written notice of the new address in the manner above set forth.    

13.7 Governing Law.
The Business Agreement  and the rights and obligations of the Parties under the Business Agreement  shall be governed by and construed and enforced in accordance with the Laws of the State of Georgia, without giving effect to the principles thereof relating to the conflicts of laws.  The Parties agree to exclude the application of the United Nations Convention on Contracts for the International Sale of Goods (1980).  In addition, the Parties mutually acknowledge and agree that the Business Agreement  relates solely to the performance of services (not the sale of goods) and, accordingly, shall not be governed by the Uniform Commercial Code of any state having or claiming jurisdiction.    

13.8 Venue and Jurisdiction.
Neither Party will (a) contest the venue of any legal action, suit, or proceeding brought in state or federal courts located in DeKalb County or Fulton County, Georgia or (b) oppose a motion to transfer venue to such courts.  Each Party irrevocably accepts and submits to the jurisdiction of each of the aforesaid courts in personam, generally and unconditionally with respect to any action, suit or proceeding brought in or transferred to such courts and waives any argument as to the inconvenience of the forum.    
 
13.9 Force Majeure.
Except for Customer’s payments obligations, neither Party shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; pandemic; electrical, internet, or telecommunication outage; government restrictions (including the denial or cancelation of any permit, franchise, export, import or other license); or other event outside the reasonable control of the obligated Party (a “Force Majeure Event”). Each Party shall use commercially reasonable efforts to mitigate the effect of a Force Majeure Event.  This Section does not excuse either Party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or Customer’s obligation to make payments under the Business Agreement .    

13.10 Remedies Cumulative.
Except as otherwise expressly indicated herein, no right or remedy herein conferred upon or reserved to either Party is intended to be exclusive of any other right or remedy, and each and every right and remedy shall be cumulative and in addition to any other right or remedy under the Business Agreement , or under applicable Law, whether now or hereafter existing.  The election by a Party of any remedy provided for in the Business Agreement  or otherwise available to such Party shall not preclude such Party from pursuing any other remedies available to such Party at law, in equity, by contract or otherwise.    
 
13.11 Section Headings.
The headings contained in the Business Agreement  are for reference purposes only and shall not in any way affect the meaning or interpretation of the Business Agreement .    

13.12 Entire Business Agreement.
Other than with respect to the Parties’ agreement(s) for services that are not referenced herein, this Business Agreement  constitutes the entire understanding of Cox and Customer for access to the Platform, Platform Services and Professional Services, and upon the Business Agreement  becoming effective, supersedes all prior notices, negotiations and agreements by the Parties relating to these matters, both oral and written. Other than as expressly set forth in the Business Agreement , the Business Agreement  may be amended only by a written amendment executed by both Parties.

13.13 Modification.
Cox may amend this Business Agreement from time to time for any reason or no reason. Except with respect to changes applicable to new functionality, which shall apply immediately, amendments shall be effective upon five (5) days’ notice to Customer.  Posting the amended Service Terms at coxedgeservices.com (or successor URL) or posting revised Service Terms in the Cox Portal will constitute written notice to Customer, with the notice period starting as of the posting date. If Customer does not agree to the revised Business Agreement, then Customer may stop using the Platform, Platform Services and/or Professional Services and Customer's continued use of the Platform, Platform Services and/or Professional Services after such notice of such change will constitute Customer's consent to such changes. Customer may contact Cox to access a prior version of this Business Agreement.