Cox Edge Standard Terms and Conditions of Service
Updated: March 15, 2023
These COX EDGE STANDARD TERMS AND CONDITIONS OF SERVICE apply to all Customers that use the Platform or Platform Services (each defined below) and all Customers that sign a SERVICE ORDER with Cox for use of the Platform and Platform Services. These COX EDGE STANDARD TERMS AND CONDITIONS OF SERVICE (the “Cox Edge Service Terms”), which, together with the COX EDGE SERVICE ORDER(S) constitute a binding agreement between Cox and Customer (the “Business Agreement”). The “Effective Date” of these Cox Edge Service Terms will be the date of acceptance (or deemed acceptance) by Customer pursuant the procedures established by Cox from time to time or, if earlier, the date of first use of the Services by Customer. If Customer uses any of the Services, Customer will be deemed to have accepted and to have agreed to be bound by these Cox Edge Service Terms, the AUP and the Privacy Notice. 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 (“Privacy Notice”) located at https://www.cox.com/aboutus/policies/edge-privacy-notice.html , as updated pursuant to the terms hereof, and the Cox Edge Acceptable Use Policy located at https://www.cox.com/aboutus/policies/edge-acceptable-use-policy.html (“AUP”), as updated pursuant to the terms hereof, both of which are incorporated into the Business Agreement by this reference. Cox can change, update, add or remove provisions of the Privacy Notice and AUP at any time by posting the updated Privacy Notice and/or AUP on the Cox website at www.cox.com or at another URL Cox may designate from time to time. Customer is responsible for periodically reviewing the Privacy Notice and AUP at the above-referenced website. Cox will ask for Customer’s express consent to the updated Privacy Notice or AUP where Cox is legally required to do so, and if Customer does not agree with any of the updated Privacy Notice or AUP, Customer must promptly notify Cox and stop using the Services. Unless otherwise required by law, the updated Privacy Notice and AUP are effective as of the day of posting. Customer’s continued use of any of the Services following an update by Cox to the Privacy Notice or AUP shall constitute acceptance by Customer of the updated Privacy Notice and AUP. 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”).
No services other than the Platform and Platform Services (collectively, the “Services”) may be accessed under the Business Agreement. Except as expressly provided herein, the Services are provided on an “as is” and “where available” basis without any representations or warranties of any kind.
WHEREAS, Cox, by and through its Affiliates is authorized to provide the Services; and
WHEREAS, Customer desires to purchase the Services from Cox under the terms and conditions contained in the 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:
1.1 “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 “Authorized User” has the meaning set forth in Section 3.1(b) below.
1.3 “Cox Portal” means the online console(s) or dashboard provided by Cox to Customer for administering the Services.
1.4 “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 Services.
1.5 “Customer Content” means all software, applications, materials, documents, 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 or Platform Services.
1.6 “Customer Data” means all data or information submitted through the Cox Portal and/or Platform by Customer or its Authorized Users and its or their employees, agents or contractors and any data or information transmitted through, stored on or processed by any Customer Application.
1.7 “Customer Technology” means all Customer Applications and all software, applications, data, connectivity, technology, infrastructure, virtual infrastructure and equipment that are operated, maintained or provided by Customer and/or the Authorized Users and/or its or their employees, agents and contractors in connection with the Services and any associated Customer Data, Customer Content, content, files, and associated data.
1.8 “End Users” means Customers customers and end users that will be licensing or using any of Customer’s services or products.
1.9 “Fees” means the amount payable from Customer to Cox.
1.10 “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).
1.11 “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.
1.12 “Non-Cox Product” means any third-party-branded software, data, service, website or product, unless incorporated by Cox in the Services.
1.13 “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.
1.14 “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 the Business Agreement.
3. ACCESS TO THE PLATFORM AND SERVICES
3.1 Access And Use.
(a) Customer shall submit to Cox 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 the Business Agreement. All Service Orders are subject to the terms and conditions of the 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. Customer is liable for ensuring all Authorized Users’ and End Users’ compliance with the terms of the Business Agreement and Customer will be liable to Cox for the acts and omissions of the Authorized Users and End Users and any and all activity on the Platform or using the Platform Services arising from use of an Authorized User’s Login Credentials. “Login Credentials” means the login or access credentials for Customer’s accounts to access the Cox Portal and/or any of the Services, and any other passwords, IP addresses, passwords and other access methods provided by Cox or any Hosting Providers for the Platform or Platform Services. Customer must create an organizational 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. After Customer creates its organizational account, Customer may use the Cox Portal’s procedures to create accounts for its Authorized Users. Customer shall provide, 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. Customer is solely responsible for all activities that occur under any Authorized User’s account, and will promptly notify Cox at firstname.lastname@example.org upon becoming aware of any unauthorized use of Login Credentials, improper or unauthorized access to or use of any Customer Application or Customer Technology, password issues, data breach, Authorized User complaint(s), loss of Customer Technology, Customer Content and Customer Data or intellectual property or privacy claims. Customer acknowledges and agrees that Cox has no obligation or liability to Customer, any End User or any Authorized User for the Authorized Users’ usage of the Services. By using the Services, an Authorized User may not bring any action against Cox in relation to the Platform or Platform Services.
(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 interrupt access to the 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 Customer regarding maintenance items or any other service-related communications.
(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 obsolete or duplicative 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 the 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 Customer Applications, Customer Data and Customer Technology 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 Customer Applications, Customer Data, Customer Technology, 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 (i) the Customer and/or Authorized User, and (ii) all Customer Applications, Customer Data and Customer Technology. Customer, not Cox, has sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and intellectual property rights of all Customer Applications, Customer Data and Customer Technology, 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 the Business Agreement shall apply to any Authorized User of the Service(s). If Customer allows Authorized Users or End Users to use the Services, Customer is responsible for ensuring that all such Authorized Users and End Users comply with the Business Agreement. Customer is responsible for ensuring that all accounts and alternative accounts associated with Customer’s principal account comply with the Business Agreement. In the event of a suspected violation of the 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 the Business Agreement.
3.2 Restrictions on Platform Use.
(a) Customer will use the Services solely for the operation of the Customer Applications permitted by the AUP (as updated from time to time) and the terms of this Agreement (collectively, the “Permitted Customer Applications Use”). Customer shall ensure that neither Customer nor any Authorized User(s) or any End Users shall: (i) (except for Customer entering into commercially reasonable agreements with Customer’s End Users to use a Customer Application pursuant to a Permitted Customer Applications Use, which agreements with End Users must be subject to the terms and conditions of the Business Agreement) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, reproduce, or timeshare in any way the 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; (ii) (except for Customer entering into commercially reasonable agreements with Customer’s End Users to use a Customer Application pursuant to a Permitted Customer Applications Use, which agreements with End Users must be subject to the terms and conditions of the Business Agreement) 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 or Platform Services 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 or Platform Services in any manner not expressly permitted herein, including accessing any part of the Platform or Platform Services 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 or Platform Services; (v) access or use the Platform or Platform Services 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 obtain in accordance with all applicable Laws. 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) or End Users shall: (i) use the Platform or Platform Services 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 or Platform Services 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 or Platform Services in any way that could harm the Platform or Platform Services 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 or Platform Services; (iv) interfere with or disrupt the integrity or performance of any part of the Platform or Platform Services or the data contained therein; (v) attempt to gain unauthorized access to any part of the Platform, its related systems or networks, any Platform Services or 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 Services for High Risk Uses; (vii) use Services 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 Bureau of Industry and Security (BIS); (viii) use the Platform or Platform Services 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 any portion thereof, in any application that directly competes with any product or service offered by Cox or any Affiliate of Cox; (x) develop, maintain, participate in the development of, or support any product, service, development tool, or software framework that directly competes with any of the Services or any portion thereof; (xi) use or exploit the 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 Services, or any portion thereof, in any manner that violates the 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 Services or any Authorized User’s access to or use of the Services, or any portion thereof, with or without prior notice, and/or remove, disable access to, or modify any Customer Technology or 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 3.2(a) and Section 3.2(b), the 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’ or End Users’ use of the Platform and Platform Services and any Customer Technology, Customer Data and/or Customer Content to investigate any potential violation of the Business Agreement, including, without limitation Section 3.2(a) and Section 3.2(b), the Privacy Notice, or the AUP. Cox will have no liability to Customer, any End User 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 Technology, Customer Data and/or 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 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 or End 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 Services to Customer and/or remove, disable access to, or modify any Customer Technology, Customer Data and/or Customer Content.
(f) In addition to Cox’s rights of termination, suspension and takedown under Section 3.2(c) above, Cox may suspend any Services or any Authorized User’s access to the Services and/or remove, disable access to, or modify any Customer Technology, Customer Data and/or Customer Content or other resource if in its sole discretion: (a) Cox believes Customer’s or any Authorized User’s or End 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 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 Services; (c) Cox in its sole discretion determines it is required to suspend Customer’s or an Authorized User’s or End User’s access to the Platform or Platform Services and/or remove, disable access to, or modify any Customer Technology, Customer Data and/or Customer Content or other resource to comply with Laws; (d) if Cox believes there is a security risk; or (e) if Cox believes Customer’s or any Authorized User’s or End User’s use unduly stresses system resources. If Customer’s access to the Services is terminated under this Section 3.2(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 the Business Agreement’s prohibition on High Risk Use, Customer shall design and implement all Customer Applications, Customer Technology, Customer Data and/or Customer Content such that, in the event of any interruption, defect, error, or other failure of 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.
(h) Unauthorized access of the servers, hardware, software, network, technology and equipment used to provide the Services is strictly prohibited and is a violation of this Agreement and the AUP. Customer agrees not to engage in such activity or to attempt to breach any such servers, hardware, software, network, technology and equipment for the purpose of altering or manipulating any of the foregoing, compromising any of the foregoing, or for any other unauthorized use commonly known as “hacking.” In the event Customer or any of its End Users or its or their employees, agents, contractors are involved in any violation of any security relating to the Services, Cox may suspend or terminate any of the Services, suspend or terminate any Authorized User accounts and may release information about Customer to Hosting Providers and law enforcement to assist in resolving security incidents.
3.3 Customer End User Terms.
3.4 Privacy and Security.
(a) Customer shall ensure that neither Customer nor any Authorized User or End 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 Applications, Customer Data, Customer Content and Customer Technology. Cox has no obligation to provide any such security. Customer is solely responsible for (i) using the Platform and Platform Services to ensure a level of security appropriate to the risk in respect of the Customer Applications, Customer Data, Customer Content and Customer Technology; (ii) securing the Cox Portal, Login Credentials and other account authentication credentials, systems, firewalls and devices Customer uses to access the Platform or Platform Services; and (iii) backing up its Customer Applications, Customer Data, Customer Content and Customer Technology as appropriate.
(c) Customer remains solely responsible for and shall ensure that all Customer Applications, Customer Data, Customer Content and Customer Technology and other applications and programs used in cohosted on the Platform or used in in connection with the Platform Services 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 email@example.com to do so.
(d) Customer is solely responsible for and shall secure its Customer Applications, Customer Data, Customer Content and Customer Technology, such as without limitation; (i) employing industry standard encryption mechanisms to materially protect and ensure the integrity of its Customer Applications, Customer Data, Customer Content and Customer Technology; (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 and best industry practices. 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, Sensitive Personal Information, Customer Content and Customer Data (including any personal information) on the Platform and processing any personal information in accordance with applicable Laws. Customer is solely responsible for keeping all Sensitive Personal Information, Customer Content and Customer Data (including any personal information of any Authorized Users) secure in compliance with all applicable Laws and for complying with all privacy laws relating to such Customer Content and Customer Data (including any personal information of any Authorized Users).
4. THIRD PARTY PRODUCTS
4.1 Third Party Licenses.
Certain Non-Cox Products distributed in connection with the Services are licensed to Customer (not under the terms and conditions of the 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 Services.
4.2 Customer acknowledges and agrees that Cox may obtain services (including server capacity and internet connectivity) from certain third-party providers (“Hosting Providers”), and that Cox may be unable to continue to provide, or to timely provide, the Services if a Hosting Provider does not comply with its agreement with Cox (each, a “Hosting Provider Agreement”). Cox will have no liability for an act or omission by a Hosting Provider. Cox will use good faith efforts to enforce its rights under each Hosting Provider Agreement.
5. FEES & PAYMENTS
The Fees for the Platform and Platform Services are as agreed upon in the applicable Service Order. Unless otherwise expressly stated in the Service Order, Customer will be responsible for paying for all Services specified in the Service Order throughout the entire term of the Service Order, even if Customer does not utilize all of the Services throughout the entire term of the Service Order. While the Cox Portal may provide for additional services to be provided on an “as needed” basis through the Cox Portal and based on Cox then-scheduled standard pricing, Cox may require that all Services and additional services require a Service Order. Customer agrees that all Fees are payable only in U.S. dollars.
Except as set forth in Section 5.3 below, 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. Unless otherwise expressly stated in the Service Order, invoicing will begin when a Service specified in the Service Order is first made available to Customer. 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. Subject to Section 5.3 and Section 5.4 below, Customer shall pay all Fees within thirty (30) calendar days from Cox’s issuance of the applicable invoice. Any sums not paid by Customer when due will bear interest at the lesser of 1.5% per month or the maximum rate permitted by Applicable Laws.
Unless otherwise agreed by the Parties in a Service Order, 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 these Cox Edge Service Terms, 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 5.3, then any unpaid sums will bear interest at the lesser of 1.5% per month or the maximum rate permitted by Applicable Laws, and Cox may, but shall not be required to, suspend Customer’s access to the Platform and/or Platform Services.
5.4 Billing Disputes.
Cox’s measurement of Customer’s use of the 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 the 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.
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.
Customer is responsible for providing technical support of its Customer Applications and to its End Users. 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, 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 the Business Agreement, Customer may not reference Cox or its Affiliates, the 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 the 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.
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
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 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 Customer is not a natural person 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 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 the 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 3.2 and the representations and warranties under Section 7.1 herein, Customer represents and warrants that Customer and/or any of Customer’s Authorized Users and End 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, and/or the Platform, directly or indirectly, to:
Customer, itself, shall not access any Customer Content, Customer Data, Confidential Information, the Cox Portal, Platform Services, 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 or Platform Services, or any portion thereof, with or without prior notice.
7.3 Without limiting any disclaimer set forth in the Business Agreement, except for service level agreement attached to a Service Order (a “Service Order SLA”), no service level agreement applies to the Services. If a Service Order SLA is attached to a Service Order, that Service Order SLA will be applicable to the services covered by such Service Order. The Service Order SLA, if any, sets forth the service level credits applicable to the Services, which service level credits are Customer’s sole and exclusive remedy for any failure, interruption or degradation of the Services. Except for Customer’s rights to service level credits set forth in the Service Order SLA, Customer hereby waives all other rights and remedies (including, but not limited to, any right to damages) arising out of any failure, interruption or degradation of the Services. The Parties agree that such service level credits are not a penalty and are intended to compensate Customer for all damages incurred by Customer on account of any and all failures, interruptions and degradation in the Services. The Parties agree that the actual damages to be suffered by Customer in such event shall be difficult, if not impossible to ascertain, and that such service level credits are a reasonable estimate of such damages. If the Parties agree that Customer is entitled to any service level credits pursuant to the Service Order SLA, Cox will apply the earned service level credits to the next sums due from Customer to Cox hereunder; however, in no event will any service level credits earned with respect to a particular Service Order in any calendar month exceed the actual monthly recurring charges payable by Customer to Cox under such Service Order for such month. Unused credits will not be payable in cash. A failure or violation of any Service Order SLA will not constitute a default under this Agreement.
COX DISCLAIMS ALL LIABILITY TO ANY AUTHORIZED USERS AND END USERS. EXCEPT AS SPECIFICALLY SET FORTH IN THE AGREEMENT, THE PLATFORM, COX PORTAL AND PLATFORM 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 OR PLATFORM SERVICES OR THAT ACCESS TO OR USE OF THE PLATFORM OR PLATFORM 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 OR PLATFORM SERVICES, (II) THAT THE PLATFORM OR PLATFORM 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 OR PLATFORM 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 OR PLATFORM 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, 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 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, in its sole discretion, subcontract or delegate all or any portion of providing the Services or any of its obligations under the 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, 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 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 or Services in violation of HIPAA, PCI or any other privacy or security Laws. Under the 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”).
(g) Cox will have no responsibility to monitor Customer’s use of the Services or any of Customer’s data or content stored on or transmitted across the Platform. Cox will have no liability or responsibility for the content of any communications transmitted by Customer or any of Customer’s End Users.
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.
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 or by a governmental agency or proceeding 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.
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 Services, (ii) obligations under the 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.
Customer hereby grants Cox the non-exclusive, royalty-free, worldwide right and license to add Customer’s name, trademark and company logo (“Customer Marks”) to our customer lists, websites and marketing materials for the purpose of denoting your status as a customer and/or user. Notwithstanding the foregoing, nothing herein will limit our ability to use such Company Marks as otherwise permitted under relevant law.
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 the extent required by Cox to comply with Law or legal proceeding(s), and to enforce or defend legal claims, including without limitation the enforcement of the Business Agreement.
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 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 Privacy Notice (including applicable de-identification terms set forth in the Privacy Notice).
9.3 Ownership and Rights of Platform and Platform Service.
The 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 Services. Any customizations or modifications to the 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.
9.4 Back Ups and Data Loss.
Customer’s use of the Services is at Customer’s own risk. Cox is not liable for any data loss or loss of Customer Technology, Customer Content, Customer Data or Customer Applications in connection with its Services. Customer is solely responsible for creating backups of its data and content, Customer Technology, Customer Content, Customer Data or Customer Applications.
10.1 Customer Indemnities.
Customer shall defend upon demand, indemnify, and hold harmless Cox, its Affiliates, its vendors and their respective officers, directors and employees (the “Cox Indemnitees”) from and against any losses, liabilities, fines, damages, claims, suits, costs and expenses (including the reasonable fees of professional advisors) resulting from any: (a) any claim asserted by or on behalf of an Authorized User ; (b) any claims asserted by or on behalf of an End User; (c) any claims asserted by any third party or regulatory authority in connection with the use of the Services by any Authorized User or End User; (d) any claims arising from a violation of the Business Agreement or AUP by Customer, any affiliates of Customer or any Authorized User or End User or any employee agent or contractor of any of the foregoing; (e) any claims 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; (f) any claims arising from use by Customer or any Authorized User of the Platform, Platform Services, Services, Customer Applications, Customer Data, Customer Content and Customer Technology (or any component of any of the foregoing); (g) any claims arising out of any security breach, any unauthorized access, any unauthorized use or any loss or corruption of data involving any Customer Applications, Customer Data, Customer Content or Customer Technology; (h) any claims arising out of any violation of any Laws for which Customer is responsible for compliance; or (h) any claims arising out of any negligence or intentional misconduct by Customer or the Authorized Users. Customer must provide indemnity using counsel reasonably acceptable to Cox, subject to the following: (i) Cox may appoint its own non-controlling counsel, at its own expense; and (ii) any settlement requiring Cox to admit liability, pay money, or take (or refrain from taking) any action, will require Cox’s prior written consent, not to be unreasonably withheld, conditioned, or delayed.
Except as otherwise provided in the Business Agreement , Cox shall indemnify Customer 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 any other person or entity other than Customer. Cox will not be obligated to indemnify Customer to the extent that the Infringement Claim results from Customer or its Authorized Users’ or End 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 Services or substitute a non-infringing version of the allegedly infringing component, (ii) obtain a license that allows Customer’s continued use of the Services, (iii) require Customer to immediately cease using the Platform or Platform Services or (iv) cease offering all or part of the 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. Customer must promptly notify Cox of any Infringement Claim and must cooperate reasonably with Cox to resolve the Infringement Claim. If Customer fails to give such prompt notice, and such failure prejudices the defense of the Infringement Claim, Cox’s obligations under this indemnity will be reduced in proportion to the prejudice. Customer must tender to Cox sole control of the indemnified portion of any Infringement Claim, subject to the following: (i) Customer may appoint its own non-controlling counsel, at its own expense; and (ii) any settlement requiring Customer to admit liability, pay money, or take (or refrain from taking) any action, will require Customer’s prior written consent, not to be unreasonably withheld, conditioned, or delayed.
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 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.
If a Hosting Provider ceases to provide the services required to be provided by such Hosting Provider pursuant to its Hosting Provider Agreement and such cessation would materially impair Cox’s ability to provide the Services pursuant to the terms hereof, Cox shall use good faith efforts to locate a replacement Hosting Provider to provide substantially similar services. However, if Cox is not able to engage a replacement Hosting Provider to provide substantially similar services within ten (10) days, Cox may notify Customer (such notice is the “Replacement Hosting Provider Notice”). If Cox gives Customer such notice, either Party will have the right to terminate this Agreement by giving notice to the other Party within thirty (30) days after Cox gives Customer the Replacement Hosting Provider Notice.
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 the 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).
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 Services performed through the effective date of termination.
12. LIMITATIONS OF LIABILITY
12.1 Damages Cap.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, 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, EXCEPT COX’S TOTAL AGGREGATE LIABILITY FOR DAMAGES ARISING OUT OF OR RELATED TO SERVICES PROVIDED FREE OF CHARGE IS LIMITED TO $5,000. FURTHER, WITHOUT EXPANDING COX’S LIABILITY HEREUNDER, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COX’S TOTAL AGGREGATE LIABILITY TO CUSTOMER (AND ANY AUTHORIZED USER OR OTHER PERSON OR ENTITY CLAIMING BY, THROUGH OR UNDER CUSTOMER) FOR ANY SECURITY BREACH, DATA BREACH, UNAUTHORIZED ACCESS TO ANY CUSTOMER DATA, CUSTOMER CONTENT, CUSTOMER TECHNOLOGY OR CUSTOMER APPLICATIONS WILL NOT EXCEED THE LESSER OF ONE MILLION DOLLARS ($1,000,000.00) OR 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, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, 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, CUSTOMER TECHNOLOGY 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 SERVICES.
The limitations in Section 12.1(Damages Cap) and Section 12.2(Consequential Damages) will not apply to Section 10.1.
12.4 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 No Third Party Beneficiaries; Assignment.
No person or entity, including but not limited to any End Users and Authorized Users, are third party beneficiaries of any term of the Business Agreement. Cox will not have any liability to any End Users or Authorized Users in connection with any Services or this Business Agreement. 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.
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 the Business Agreement.
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.
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 Delaware, 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 New Castle County, Delaware 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, the Business Agreement constitutes the entire understanding of Cox and Customer for access to the 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.
Cox may amend the Cox Edge Service Terms 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 Cox Edge Service Terms at cox.com (or successor URL) or posting revised Cox Edge 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 Cox Edge Service Terms, then Customer must promptly notify Cox and stop using the Services. Unless otherwise required by law, the updated Cox Edge Service Terms are effective as of the day of posting. Customer’s continued use of any of the Services following an update by Cox to the Cox Edge Service Terms shall constitute acceptance by Customer of the updated Cox Edge Service Terms.
14. DISPUTE RESOLUTION; MANDATORY BINDING ARBITRATION; CLASS ACTION AND MASS ACTION WAIVER—
In this Section 14, “you” and “your” mean the “Customer, and “we,” “our,” and “us” means “Cox.”
IF YOU FOLLOW THE PROCEDURES SET FORTH IN SECTION 14(B) BELOW, YOU HAVE THE RIGHT TO OPT OUT OF THIS DISPUTE RESOLUTION PROVISION (“DISPUTE RESOLUTION PROVISION”) (EXCEPT JURY TRIAL WAIVER) WITHIN 30 DAYS OF THE EFFECTIVE DATE OF THESE COX EDGE SERVICE TERMS; PROVIDED HOWEVER IF YOU BECOME A NEW COX CUSTOMER AFTER THE EFFECTIVE DATE OF THESE COX EDGE SERVICE TERMS, YOU HAVE THE RIGHT TO OPT OUT OF THIS DISPUTE RESOLUTION PROVISION (EXCEPT JURY TRIAL WAIVER) WITHIN 30 DAYS OF YOUR ACCEPTANCE OF THESE COX EDGE SERVICE TERMS (THE “OPT-OUT PERIOD”). OTHERWISE, YOU WILL BE BOUND TO SETTLE ANY DISPUTES YOU MAY HAVE WITH COX THROUGH THE FOLLOWING DISPUTE RESOLUTION PROCEDURES.
A. YOU AND COX AGREE TO ARBITRATE — RATHER THAN LITIGATE IN COURT — any and all claims, disputes, or controversies between you and Cox, including any parents, subsidiaries, affiliates, officers, directors, employees, or agents of Cox, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, negligence, or any other intentional tort) or other legal or equitable theory, except as expressly provided in Sections 14(G) and 14(H) below (“Dispute”) that arise out of or in any way relate to this Agreement, any of the Services provided under this Agreement or any other Services or products that Cox provides to you in connection with this Agreement (including but not limited to amounts that Cox charges you for Services or products provided, any alleged breach related to the collection, retention or disclosure of your personal information, and any alleged violation of our Privacy Notice). You and Cox also agree to arbitrate any and all Disputes that arise out of or relate in any way to any services or products provided to you by Cox or any of its affiliated entities under any other agreement, except as specified in Sections 14(G) and 14(H) below.
B. Opt Out:
You may opt out of this Dispute Resolution Provision (except for the jury trial waiver contained in Section 14(K) below and the venue requirements in Section 14(L) below) by notifying Cox of that intent during the Opt-Out Period by sending an email to Cox at ArbitrationOptOut@cox.com or a letter via U.S. mail to Cox Legal Department, Attn: Litigation Counsel, 6205B Peachtree Dunwoody Road, Atlanta, GA 30328 stating that you are opting out of this dispute resolution provision. Exercising this right, should you choose to do so, will not affect any of the other terms of this Agreement with Cox, and you may remain a Cox customer. If you opt out of the Dispute Resolution Provision, that opt out will remain in effect if Cox modifies this section in the future or you agree to a new term of service under this Agreement. If you enter into a new agreement with Cox that includes a dispute resolution provision and you want to opt out of that provision, you will need to follow the instructions in that agreement for opting out.
C. Class Action and Mass Action Waiver:
All Disputes between us must be resolved on an individual basis. Except as specified below, you and Cox agree that all Disputes between you and Cox will be arbitrated individually, and that you will not file or participate in a “Class Action” (as defined in federal, state, or arbitration procedural rules), any other form of class, collective, representative, or consolidated actions (collectively “Mass Action,” which term includes, but is not limited to, any action in which twenty-five or more similar demands for arbitration are filed against Cox or any of its affiliated entities and representation for the parties is consistent or coordinated across all cases. The twenty-five or more demands for arbitration need not be filed simultaneously. A Mass Action expressly includes any mass action as defined under National Arbitration and Mediation (“NAM”) Comprehensive Rules and Procedures (including its Mass Filing Supplemental Dispute Resolution Rules and Procedures). We both agree that it is a material breach of this Dispute Resolution Provision to file or participate in a Class Action or Mass Action, and Cox may enforce this prohibition as set forth in Section 14(H) below. If you or Cox brings a claim in small claims court, this Class Action and Mass Action waiver will apply. Nothing in this subsection bars any claims by you for public injunctive relief, which must be decided in court under Section 14(H) below. We both agree that this Class Action and Mass Action waiver is an essential part of our arbitration agreement and that if this Class Action and Mass Action waiver is found to be unenforceable by any court or arbitrator then the entire arbitration agreement set forth in this Section 14 will not apply to any Dispute between you and Cox, except for the provisions of Section 14(K) waiving the right to jury trial. This Class Action and Mass Action waiver may not be severed from our arbitration agreement.
D. Arbitrator Authority:
The arbitration between you and Cox will be binding. In arbitration, there is no judge and no jury. Instead, our Disputes will be resolved by an arbitrator, whose authority is governed by the terms of this Agreement. You and Cox agree that an arbitrator may only award such relief as a court of competent jurisdiction could award, limited to the same extent as a court would limit relief pursuant to the terms of this Agreement. Except as provided in Section 14(H) below, the arbitrator may resolve all disputes concerning whether this Dispute Resolution Provision is enforceable, unconscionable, applicable, valid, void, or voidable. An arbitrator may award attorneys’ fees and costs if a court would be authorized to do so, and may issue injunctive or declaratory relief if that relief is required or authorized by the Applicable Law, but that injunctive or declaratory relief may not extend beyond you and your dealings with Cox. Review of arbitration decisions in the courts is very limited. Any arbitrator award – whether or not confirmed – is neither res judicata nor collateral estoppel as to any Dispute or issue between the parties not subject to or not submitted to arbitration (including, but not limited to, any claim for public injunctive relief) or as to any Dispute or claim between Cox and any non-parties to the arbitration. Because of, among other things, the nature of any Dispute submitted to arbitration, the informality of the procedures to adjudicate any such Dispute, and the limited review of arbitration decisions by the court, the award is conclusive only as to the Dispute resolved in arbitration and only as to the parties to that arbitration.
E. Informal Dispute Resolution:
You and Cox agree that you must attempt to resolve disputes informally before you may file a demand for arbitration, as set forth in this section (the “Informal Dispute Resolution Process”). If you have a dispute, first call Cox Customer Care at the number listed on your monthly bill statement. If the Cox representative is unable to resolve your dispute in a timely manner, you agree to then notify Cox of the dispute by sending a written description of your claim to firstname.lastname@example.org, along with your address, so that Cox can attempt to resolve it with you. If Cox does not satisfactorily resolve your claim within 45 calendar days of receiving written notice to Cox Customer Care of your claim, then you may pursue the claim in arbitration, and if you do so, you must first notify us in writing of your intent to file for arbitration by sending a written notice of your intent to file for arbitration to Cox via U.S. mail to Cox Legal Department, Attn: Litigation Counsel, 6205B Peachtree Dunwoody Road, Atlanta, GA 30328. Cox will notify you before it files for arbitration by sending you a written notice of our intent to file for arbitration to the last known address of record we have on file for you at least 45 calendar days prior to initiating arbitration or a small claims action. At any time during the Informal Dispute Resolution process, either you or Cox may elect to have the Dispute resolved in small claims court in accordance with Section 14(G) below. This Informal Dispute Resolution is mandatory, and we both agree that it is an essential part of our arbitration agreement. We both agree that it is a material breach of this Dispute Resolution Provision to initiate an arbitration or small claims action without first engaging in the Informal Dispute Resolution Process.
F. Arbitration Procedures:
You and Cox agree that this Agreement and the services Cox provides to you affects interstate commerce and that the Federal Arbitration Act and not state arbitration laws applies for all Disputes. All arbitration shall be conducted by NAM under its Comprehensive Rules and Procedures (including its Mass Filing Supplemental Dispute Resolution Rules and Procedures) as modified by this Dispute Resolution Provision. NAM’s rules are available on its website www.namadr.com or by calling 1- 800-358-2550. You must file your own demand, which sets forth your own claim, and may not join in a claim filed by another person. If the arbitrator determines that claim is for $25,000 or less, you agree that it may be resolved based only on written submissions. For claims above $25,000, the arbitration will be held at a location in Fulton County, Georgia, unless you and we both agree to another location, a remote video hearing, or a telephonic or “desk” arbitration (i.e. an arbitration conducting solely on the basis of written submissions by the participants.) If there is a conflict between NAM’s rules and this Dispute Resolution Provision, this Dispute Resolution Provision shall control. To initiate arbitration, you must send a letter requesting arbitration and describing your claims to Cox at ArbitrationOptOut@cox.com or via U.S. mail to Cox Legal Department, Attn: Litigation Counsel, 6205B Peachtree Dunwoody Road, Atlanta, GA 30328. You must also comply with the NAM’s rules regarding initiation of arbitration. The Parties will split all filing fees and costs for commencement of arbitration, except the portion of such fees allocated to you under NAM’s fee schedule then in effect. We agree that fees imposed by NAM will be due at the time set forth under NAM’s rules, except that in no event shall the fees payable by the party responding to the demand for arbitration be due and payable earlier than 30 days from the date on which that party receives an invoice. You will be responsible for your own attorneys’ fees and costs. Any award, decision, finding, or conclusion entered or adopted by an arbitrator shall only apply to the individual arbitration and shall not have any res judicata, collateral estoppel or other preclusive effect and such award, decision, finding, or conclusion shall not be referred to, offered, or admitted in any subsequent proceeding.
G. Small Claims:
Notwithstanding this agreement to arbitrate, you and Cox may bring appropriate Disputes against each other in small claims court, if the Dispute falls within the small claims court’s jurisdiction, or before the Federal Communications Commission, the relevant state public utilities commission, or any other federal, state, or local government agency authorized by law to hear the Dispute. A small claims court includes any court designated as small claims or any court of limited jurisdiction in which claims are only resolved on an individual basis. During the 45-day period following your submission of written notice of a Dispute to Cox, in which time you and Cox attempt to informally resolve the Dispute, or within 30 days after you or Cox have initiated an arbitration, either you or Cox may elect to have the Dispute resolved in small claims court by sending written notice to the other party of this election. In the event there is any disagreement between you and Cox concerning whether the Dispute is within the jurisdiction of the small claims court, only the small claims court may resolve that disagreement. If the small claims court determines that it lacks jurisdiction to hear the Dispute, then the Dispute may be submitted to arbitration in accordance with the terms of this Section 14. If the small claims court determines that it has jurisdiction over part of the Dispute, then that part shall first be resolved in small claims court, and any remaining issues in the Dispute shall be resolved in accordance with the terms of this Section 14. We both agree that it is a material breach of this Dispute Resolution Provision to initiate an arbitration when the other party has elected to have the Dispute resolved in small claims court, absent a determination by the small claims court that it does not have jurisdiction over the Dispute.
H. Exceptions to Arbitration:
(i) This Dispute Resolution Provision does not require arbitration of claims for public injunctive relief. To the extent that you have a Dispute that is subject to arbitration and you also assert a claim for public injunctive relief that is required to be brought in court, the arbitrator shall first decide the merits of the Dispute. A court may then decide your claim for public injunctive relief de novo (without giving any law of the case, res judicata or collateral estoppel effect to the award or arbitration decision on the Dispute).
(ii) This Dispute Resolution Provision shall not require arbitration of any claim concerning whether you have filed or participated in a prohibited Class Action or Mass Action, which shall be determined by a court of competent jurisdiction, except that either Party may promptly elect to have such a claim resolved under NAM’s Mass Filing Supplemental Dispute Resolution Rules and Procedures (the “NAM Election”). In the event any party alleged to be a participant in a prohibited Class Action or Mass Action makes the NAM Election, we agree that Cox shall have the right to make the NAM Election for any additional claim against any party alleged to be part of the same prohibited Class Action or Mass Action, even if Cox has already initiated an action in court.
(iii) This Dispute Resolution Provision shall not require arbitration of any claim that you or Cox have breached this Dispute Resolution Provision, including but not limited to claims of material breach of Sections 14(C) [Class Action and Mass Action Waiver], 14(E) [Informal Dispute Resolution], or 14(G) [Small Claims], except that either party may promptly make a NAM Election for that claim. In the event any party alleged to have breached this Dispute Resolution Provision makes a NAM Election, we agree that Cox shall have the right to make the NAM Election for any additional claim against any party alleged to be part of the same prohibited Class Action or Mass Action, even if Cox has already initiated an action in court. We agree that any of the remedies set forth in section 14(I) [Remedies for Breach of Dispute Resolution Provision] may be imposed.
(iv) Should Cox notify NAM and you in writing that it contends an arbitration(s) you filed breaches the Dispute Resolution Process, that you have participated or will be participating in a prohibited Class Action or Mass Action, or that you have otherwise materially breached Sections 14(C), 14(E), or 14(G), then NAM will stay the arbitration(s). In such event, either you may bring an action against Cox to compel it to arbitrate such Dispute(s) or Cox may bring an action for declaratory relief that it is not required to arbitrate such Dispute(s). Such actions must be brought in a court of competent jurisdiction located in the same judicial district as the address listed in the Informal Dispute Resolution Notice, the small claims court that Cox contends should resolve the Dispute(s), or with NAM pursuant to a NAM Election.
I. Remedies for Breach of Dispute Resolution Provision:
As set forth above in Sections 14(C), 14(E), and 14(G), we agree that certain actions constitute a material breach of this Dispute Resolution Agreement. We agree that one of the essential purposes of this Dispute Resolution Provision is to provide for the prompt, efficient, and inexpensive resolution of disputes, and Sections 14(C), 14(E), and 14(G) further this purpose by ensuring disputes are resolved on an individual basis and by providing for alternative low-cost paths to resolving individual disputes. In the event a court or arbitrator determines that a breach of the Dispute Resolution Provision has occurred, or in the event an arbitrator acting under NAM’s Mass Filing Supplemental Dispute Resolution Rules and Procedures determines that you have participated in a prohibited Class Action or Mass Action, then we agree on the following remedies, in addition to any other remedy ordered by the court or arbitrator:
(i) The court or arbitrator may enter an order permitting the dispute to be heard in court, rather than arbitration. Whether the Dispute proceeds to resolution in court or in arbitration, you agree that the Dispute will be resolved on an individual basis as set forth in Section 14(C).
(ii) The court or arbitrator may enter an order that the breaching party bear the non- breaching party’s costs, including but not limited to fees incurred in court or in arbitration.
(iii) The court or arbitrator may enter an order to dismiss without prejudice all demands included within the Mass Action.
It is the intention of the parties that the provisions of this Dispute Resolution Provision are mutually dependent and not severable. If any part of this Dispute Resolution Provision is determined to be unenforceable for any reason, then the entire Dispute Resolution Provision, except for the Jury Trial Waiver set forth in Section 14(K), shall be unenforceable.
K. Jury Trial Waiver:
If for any reason this arbitration agreement is found to be unenforceable under Section 14(J) [Non-Severability], or if you opt out of this Dispute Resolution Provision, you and Cox expressly and knowingly WAIVE THE RIGHT TO TRIAL BY JURY. This means that a Judge rather than a Jury will decide disputes between you and Cox if, for any reason, this arbitration agreement is not enforced.
Venue in any arbitration, litigation, or other action relating to or arising out of the Business Agreement shall be brought exclusively in the federal courts of Fulton County, Georgia, except in the limited instance where said federal courts do not have jurisdiction over the applicable dispute, in which case venue shall instead exclusively lie in the state courts of Fulton County, Georgia. Each of the Parties hereby consents to the jurisdiction of the courts of such jurisdiction, waives any objection to the venue of any action filed in any court situated in such jurisdictions, and waives any right under the doctrine of forum non-conveniens, or otherwise, to transfer any such action filed in any such courts to any other court.
This Dispute Resolution Provision survives the termination of your Services with Cox. If you bring a claim against Cox after termination of your Services that is based in whole or in part on events or omissions that occurred while you were a Cox customer, this dispute resolution provision shall apply.