This Cloud Services License Agreement (“Agreement”) is a binding legal contract between you (“Company”) and CXO Nexus, C Corp. (“CXO Nexus”).  By accessing or using the Services, as defined below, Company will be bound by the terms of this Agreement.  If Company does not agree to the terms of this Agreement, CXO Nexus is not willing to license any right to use or access the Services.  If this agreement is being agreed to by a company or other legal entity, then the person agreeing to this Agreement on behalf of that company or entity represents and warrants that he or she is authorized and lawfully able to bind that company or entity to this Agreement.  Company should print and retain a copy of this Agreement for its records.

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1. Term. This Agreement will become effective on the first date Company accesses the Services, as defined below (the “Effective Date”).  The initial term (“Initial Term”) of this Agreement will begin on the Effective Date and will continue thereafter for one (1) year. Thereafter, the Agreement will automatically renew for successive one-year terms (each a “Renewal Term”), unless either party gives notice to the other of its intent not to renew at least thirty (30) days prior to the expiration of the Initial Term or Renewal Term, as appropriate. The Initial Term, as extended by any Renewal Term(s), is referred to herein as the “Term.”

2. Services. Subject to the terms and conditions of this Agreement and Company’s payment of all relevant fees, CXO Nexus grants Company and its End Users (as defined below) a non-exclusive, non-transferable license to access and use CXO Nexus’ hosted services (the “Services”) solely for Company’s internal business purposes.  To the extent any CXO Nexus software (“CXO Nexus Software”) is provided to or is otherwise accessible by the Company for installation on its systems for use in connection with the Services, the CXO Nexus Software will be included in the definition of Services and subject to the foregoing license.  All CXO Nexus Software may only be used in support of Company’s use of the Services and for no other purpose.  For purposes of this Agreement, “End Users” means Company’s employees who are authorized to access the Services on Company’s behalf. 

3. Restrictions. Company and its End Users may only use the Services as described in this Agreement and in the then current documentation made generally available by CXO Nexus to its other customers regarding the Services (the “Documentation”). Company is responsible for ensuring its End Users comply with all relevant terms of this Agreement and any failure to comply will constitute a breach by Company.  Except as expressly authorized by this Agreement, Company will not, and will not allow any End User or other third party to, (i) permit any third party to access or use the Services other than an End User; (ii) decompile, disassemble, reverse engineer, or otherwise attempt to derive the trade secrets embodied in the Services, except to the extent expressly permitted by applicable law; (iii) use the Services or any CXO Nexus Confidential Information to develop a competing product or service; (iv) use any Service, or allow the transfer, transmission, export, or re-export of any Service or portion thereof, in violation of any export control laws or regulations administered by the U.S. Commerce Department or any other government agency; or (v) remove any copyright, trademark, proprietary rights, disclaimer, or warning notice included on or embedded in any part of the Documentation and Services, including any screen displays, components, or any other elements of any kind of the Documentation and Services, or any other products or materials provided by CXO Nexus in connection with this Agreement. Under no circumstances will CXO Nexus be liable or responsible for any use, or any results obtained by the use, of the Services in conjunction with any services, software, or hardware that are not provided by CXO Nexus. All such use will be at Company’s sole risk and liability.

4. Availability. The hosted elements of the Services will be available for remote access 99.5% of the time each calendar month of the Term, excluding Excused Outages (as defined below) (“Availability”).  Downtime as a result of any causes beyond the control of CXO Nexus or that are not reasonably foreseeable by CXO Nexus, including, without limitation by any of the events noted below are excluded from the Availability calculations (collectively, “Excused Outages”):

a. Company or any End User environment issues affecting connectivity or interfering with the Services, including without limitation, Company’s or any End User’s telecommunications connection or any other Company or any End User software or equipment, Company’s or any End User’s firewall software, hardware or security settings, Company’s or any End User’s configuration of anti-virus software or anti-spyware or malware software, or operator error of Company or any End User;

b. any third party software, hardware, or telecommunication failures, including Internet slow-downs or failures;

c. force majeure events, including, without limitation fire, flood, earthquake, elements of nature or acts of God; third party labor disruptions, acts of war, terrorism, riots, civil disorders, rebellions or revolutions; quarantines, embargoes and other similar governmental action; or any other similar cause beyond the reasonable control of CXO Nexus;

d. issues related to third party domain name system (DNS) errors or failures;

e. scheduled maintenance of the Services, conducted on a regular basis, of which CXO Nexus will give Company a minimum of twenty-four (24) hours advanced notice by email or other pre-approved notification; and

f. emergency maintenance of the Services, not to exceed four (4) hours in any month, for which Company may not receive advanced notice.

In the event CXO Nexus fails to achieve the Availability requirement, CXO Nexus will use commercially reasonable efforts to correct the interruption as promptly as practicable. In the event CXO Nexus fails to achieve the Availability requirement in two consecutive months during the term of this Agreement, Company may terminate this Agreement within thirty (30) days of the end of the second consecutive month, without further obligation and receive a prorated refund of any pre-paid, unused recurring fees. The refund will constitute Company’s sole and exclusive remedy and CXO Nexus’ sole and exclusive liability for failure to achieve the Availability requirement.

5. Information Security. Consistent with any law or regulation applicable to the Services and CXO Nexus’ then current practices and procedures, CXO Nexus will maintain and enforce administrative, technical, and physical safeguards to reasonably protect the confidentiality, availability, and integrity of Company’s Confidential Information and the Company Data.  CXO Nexus will promptly report to Company any compromise of security that it becomes aware of with regard to Company Data. CXO Nexus makes no other covenants, promises or warranties of any kind with respect to Company’s Confidential Information and the Company Data

6. Connectivity. Company and End Users are solely responsible for all telecommunication or Internet connections required to access the Services, as well as all hardware and software at Company’s site. In addition to other third party costs that may apply, Company agrees to pay for all telecommunications costs, fees and services required for and dedicated to Company’s or any End User’s access to the Services.

7. Proprietary Rights. Company acknowledges and agrees that (i) all Services, including Support Services and Professional Services, are protected by intellectual property rights, as applicable, of CXO Nexus and its vendors/licensors and that Company has no right to transfer or reproduce any of the foregoing or any software provided with the Services or prepare any derivative works with respect to, or disclose Confidential Information (as defined in Section 16 (Confidentiality)) pertaining to, any Services, including Support Services and Professional Services, or any part of them and (ii) that CXO Nexus owns all right, title, and interest in and to the Services, including Support Services and Professional Services, including any changes or modifications made to the Services performed in connection with this Agreement, together with all ideas, architecture, algorithms, models, processes, techniques, Company interfaces, database design and architecture, and “know-how” embodying the Services, including Support Services and Professional Services. Under no circumstances will Company be deemed to receive title to any portion of the Services, including Support Services and Professional Services, title to which at all times will vest exclusively in CXO Nexus. This is not a “work made for hire” agreement, as that term is defined in Section 101 of Title 17 of the United States Code.  Company will preserve all Services from any liens, encumbrances, and claims of any individual or entity. Company will not use any Confidential Information disclosed by CXO Nexus to Company in connection with this Agreement to contest the validity of any intellectual property rights of CXO Nexus or its licensors. Any such use of CXO Nexus’ Confidential Information will constitute a material, non-curable breach of this Agreement.

8. Company Data. Company grants CXO Nexus a non-exclusive, world-wide, royalty-free license to use the documents, information, graphics, data, content, and other materials input by Company into the Services (the “Company Data”) for purposes of performing this Agreement. Company will be responsible for obtaining all rights, permissions, and authorizations to provide the Company Data to CXO Nexus for use as contemplated under this Agreement. Except for the license granted in this Section, nothing contained in this Agreement will be construed as CXO Nexus any right, title, or interest in the Company Data. Company grants CXO Nexus a non-exclusive, perpetual, irrevocable, fully-paid-up, royalty free license to use, copy, distribute, and contextualize statistical and other aggregated data derived from Company’s use of Services (the “Aggregated Data”) for CXO Nexus’ business purposes, including the provision of products and services to CXO Nexus’ other customers; provided the Aggregated Data is combined with similar data from CXO Nexus’ other customers and does not include (directly or by inference) any information identifying Company or any identifiable individual. The Aggregated Data will not be considered Company’s Confidential Information.

9. Feedback. Company may provide suggestions, comments or other feedback (collectively, “Feedback”) to CXO Nexus with respect to its products and services, including the Services. Feedback is voluntary. CXO Nexus may use Feedback for any purpose without obligation of any kind. To the extent a license is required under Company’s intellectual property rights to make use of the Feedback, Company grants CXO Nexus an irrevocable, non-exclusive, perpetual, fully-paid-up, royalty-free license to use the Feedback in connection with CXO Nexus business, including the enhancement of the Services.

10. Support and Maintenance. During the Term, CXO Nexus will provide Company with reasonable telephone support during CXO Nexus’ then current business hours.  CXO Nexus will provide Company Service updates and bug fixes that CXO Nexus in its sole discretion makes generally available to its other similarly situated licensees at no charge.  However, Company shall not be entitled to receive updates or new releases that include new or different functionality for which CXO Nexus imposes an additional charge to its other customers.  Such new or different functionality may be purchased by Company, in its discretion, at CXO Nexus’ then current pricing.  CXO Nexus will use commercially reasonable efforts to correct reproducible failures of the Service to perform in substantial accordance with their then current Documentation.  The support and maintenance services described in this Section may be referred to, collectively, as the “Support Services.”

11. Professional Services.  From time-to-time, the CXO Nexus and Company may enter into one or more Statements of Work that specifically reference this Agreement under which CXO Nexus will furnish certain professional services to Company (the “Professional Services”).  The Statements of Work will describe the nature of the services, fees, and other relevant terms.  

12. Fees.
12.1. In General.  Company will pay CXO Nexus the fees associated with the Services. Except as provided in Sections 13.2, and 18, all fees are non-refundable.  Company will pay all invoices within thirty (30) days of invoice date. Payments not made within that time period will be subject to late charges equal to the lesser of (a) one and one-half percent (1.5%) per month of the overdue amount or (b) the maximum amount permitted under applicable law. In the event an invoice remains unpaid forty-five (45) or more days from the invoice date, CXO Nexus may, in its discretion, suspend the Services until the invoice is paid in full.  Following the initial year of the Term, on sixty (60) days prior notice to Company, CXO Nexus may, at its discretion, adjust any or all fees due hereunder. Company may terminate this Agreement on written notice to CXO Nexus within thirty (30) days of its receipt of notice from CXO Nexus to adjust the fees; provided, however, that if Company fails to object to such adjustment in writing within the foregoing thirty (30) days then Company will be deemed to have agreed to the adjustment.

12.2. Taxes. In addition to any other payments due under this Agreement, Company agrees to pay, indemnify and hold CXO Nexus harmless from any sales, use, transfer, privilege, tariffs, excise, and all other taxes and all duties, whether international, national, state, or local, however designated, which are levied or imposed by reason of the performance of the Services under this Agreement; excluding, however, income taxes on profits which may be levied against CXO Nexus.

13. Warranties.
13.1. Company Warranty. Company represents and warrants that (a) it has full power, capacity, and authority to enter into this Agreement and to grant the license set forth in Section 8 (Company Data); (b) any Company Data provided by Company to CXO Nexus for use in connection with the Services does not and will not infringe the intellectual property, publicity, or privacy rights of any person and is not defamatory, obscene, or in violation of applicable foreign, federal, state and local laws, rules and regulations (including but not limited to applicable policies and laws related to spamming, privacy, and consumer protection) (collectively, “Applicable Law”); and (c) its use of the Services will be in compliance with all Applicable Law.

13.2. CXO Nexus Warranty. During the Term, CXO Nexus represents and warrants (i) the Services will substantially comply with the Documentation; (ii) it shall use commercially reasonable efforts to screen the Services for viruses, Trojan horses, worms, and other similar intentionally harmful or destructive code; and (iii) it shall comply with Applicable Law in performing this Agreement. In the event of a breach of the warranty in Section 13.2(i), CXO Nexus’ sole and exclusive liability and Company’s sole and exclusive remedy will be to perform the defective Service again. In the event CXO Nexus is unable through reasonable efforts to correct the defective Service within thirty (30) days from receipt of notice from Company of the breach, Company may elect to terminate this Agreement and receive a pro-rated refund of any pre-paid, unused recurring fees for the non-conforming Services.
13.3. Disclaimer of Warranties. EXCEPT AS PROVIDED IN SECTION 13.2 (PROVIDER WARRANTY), THE SERVICES, SUPPORT SERVICES, AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS” AND “AS-AVAILABLE,” WITH ALL FAULTS, AND WITHOUT WARRANTIES OF ANY KIND. CXO Nexus AND ITS VENDORS AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, QUALITY OF INFORMATION, AND TITLE/NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY PROVIDER OR ITS AUTHORIZED REPRESENTATIVES WILL CREATE ANY OTHER WARRANTIES OR IN ANY WAY INCREASE THE SCOPE OF CXO Nexus’ OBLIGATIONS HEREUNDER. THE SERVICES MAY BE USED TO ACCESS AND TRANSFER INFORMATION OVER THE INTERNET. COMPANY ACKNOWLEDGES AND AGREES THAT CXO Nexus AND ITS VENDORS AND LICENSORS DO NOT OPERATE OR CONTROL THE INTERNET AND THAT: (I) VIRUSES, WORMS, TROJAN HORSES, OR OTHER UNDESIRABLE DATA OR SOFTWARE; OR (II) UNAUTHORIZED USERS (E.G., HACKERS) MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE COMPANY’S DATA, WEB‑SITES, COMPUTERS, OR NETWORKS. CXO Nexus WILL NOT BE RESPONSIBLE FOR SUCH ACTIVITIES. COMPANY IS RESPONSIBLE FOR PRESERVING AND MAKING ADEQUATE BACKUPS OF ITS DATA.

14. CXO Nexus Indemnity. CXO Nexus will defend and indemnify Company and hold it harmless from any and all claims, losses, deficiencies, damages, liabilities, costs, and expenses (including but not limited to reasonable attorneys’ fees) arising from a claim by a third party that Company’s licensed use of the Services infringes that third party’s United States patent, copyright, or trade secret rights. The foregoing indemnification obligation of CXO Nexus is contingent upon Company promptly notifying CXO Nexus in writing of such claim, permitting CXO Nexus sole authority to control the defense or settlement of such claim and providing CXO Nexus reasonable assistance (at CXO Nexus’ sole expense) in connection therewith. If a claim of infringement under this Section 14 (Indemnity) occurs, or if CXO Nexus determines a claim is likely to occur, CXO Nexus will have the right, in its sole discretion, to either (i) procure for Company the right or license to continue to use the Services free of the infringement claim, or (ii) modify the Services to make it non-infringing, without loss of material functionality. If neither of these remedies is reasonably available to CXO Nexus, CXO Nexus may, in its sole discretion, immediately terminate this Agreement and return the prorated portion of any pre-paid, unused fees for the relevant Services. Notwithstanding the foregoing, CXO Nexus will have no obligation with respect to any claim of infringement that is based upon or arises out of (i) the use or combination of the Services with any hardware, software, products, data, or other materials not provided by CXO Nexus, (ii) modification or alteration of the Services by anyone other than CXO Nexus, (iii) use of Services in excess of the rights granted in this Agreement, or (iv) any specifications or other intellectual property provided by Company or any End User, including the Company Data (collectively, the “Excluded Claims”). The provisions of this Section 14 (Indemnity) state the sole and exclusive obligations and liability of CXO Nexus and its licensors and suppliers for any claim of intellectual property infringement arising out of or relating to the Services or this Agreement, and are in lieu of any implied warranties of non-infringement, all of which are expressly disclaimed.

15. Company Indemnity. Company will defend and indemnify CXO Nexus and hold it harmless from any and all claims, losses, deficiencies, damages, liabilities, costs, and expenses (including but not limited to reasonable attorneys’ fees) incurred by CXO Nexus as a result of any claim by a third party arising from (i) Company’s or any End User’s use of the Services in breach of this Agreement or (ii) the Excluded Claims.

16. Confidentiality.
16.1. Definition of Confidential Information. Each party agrees that all information supplied by one party and its affiliates and agents (collectively, the “Disclosing Party”) to the other (“Receiving Party”) including, without limitation: (a) source and object code, prices, trade secrets, mask works, databases, hardware, software, designs and techniques, programs, engine protocols, models, displays and manuals, and the selection, coordination, and arrangement of the contents of such materials, and (b) any unpublished information concerning research activities and plans, marketing or sales plans, sales forecasts or results of marketing efforts, pricing or pricing strategies, costs, operational techniques, strategic plans, and unpublished financial information, including information concerning revenues, profits and profit margins, will be deemed confidential and proprietary to the Disclosing Party, regardless of whether such information was disclosed intentionally or unintentionally or marked as “confidential” or “proprietary” (“Confidential Information”). For the avoidance of doubt, the Services and Documentation are the Confidential Information of CXO Nexus, and the Company Data is the Confidential Information of Company.

16.2. Exclusions. Confidential Information will not include any information or material, or any element thereof, whether or not such information or material is Confidential Information for the purposes of this Agreement, to the extent any such information or material, or any element thereof: (a) has previously become or is generally known, unless it has become generally known through a breach of this Agreement or a similar confidentiality or non-disclosure agreement; (b) was already rightfully known to the Receiving Party prior to being disclosed by or obtained from the Disclosing Party as evidenced by written records kept in the ordinary course of business of or by proof of actual use by the Receiving Party; (c) has been or is hereafter rightfully received by the Receiving Party from a third person (other than the Disclosing Party) without restriction or disclosure and without breach of a duty of confidentiality to the Disclosing Party; or (d) has been independently developed by the Receiving Party without access to Confidential Information of the Disclosing Party.

16.3. Treatment of Confidential Information. Each party recognizes the importance of the other’s Confidential Information. In particular, each party recognizes and agrees that the Confidential Information of the other is critical to their respective businesses and that neither party would enter into this Agreement without assurance that such information and the value thereof will be protected as provided in this Section and elsewhere in this Agreement. Accordingly, each party agrees as follows: (a) the Receiving Party will hold any and all Confidential Information it obtains in strictest confidence and will use and permit use of Confidential Information solely for the purposes of this Agreement; (b) without limiting the foregoing, the Receiving Party will use at least the same degree of care, but no less than reasonable care, to avoid disclosure or use of this Confidential Information as the Receiving Party employs with respect to its own Confidential Information of a like importance; (c) the Receiving Party may disclose or provide access to its responsible employees who have a need to know and may make copies of Confidential Information only to the extent reasonably necessary to carry out its obligations hereunder; (d) the Receiving Party currently has, and in the future will maintain in effect and enforce, rules and policies to protect against access to, or use or disclosure of, Confidential Information other than in accordance with this Agreement, including, without limitation, written instruction to, and agreements with, employees and agents who are bound by an obligation of confidentiality no less stringent than set forth in this Agreement to ensure that such employees and agents protect the confidentiality of Confidential Information; (e) the Receiving Party expressly will instruct its employees and agents not to disclose Confidential Information to third parties, including, without limitation, subcontractors, or consultants, without the Disclosing Party’s prior written consent; and (f) the Receiving Party will notify the Disclosing Party immediately of any unauthorized disclosure or use, and will cooperate with the Disclosing Party to protect, all proprietary rights in and ownership of its Confidential Information.

16.4. Compelled Disclosures. To the extent required by applicable law or by lawful order or requirement of a court or governmental authority having competent jurisdiction over the Receiving Party, the Receiving Party may disclose Confidential Information in accordance with such law or order or requirement, subject to the following conditions: as soon as possible after becoming aware of such law, order, or requirement, and prior to disclosing Confidential Information pursuant thereto, the Receiving Party will so notify the Disclosing Party in writing and, if possible, the Receiving Party will provide the Disclosing Party notice not less than five (5) business days prior to the required disclosure. The Receiving Party will use reasonable efforts not to release Confidential Information pending the outcome of any measures taken by the Disclosing Party to contest, otherwise oppose, or seek to limit such disclosure by the Receiving Party, and any subsequent disclosure or use of Confidential Information that may result from such disclosure. The Receiving Party will cooperate with and provide assistance to the Disclosing Party regarding such measures. Notwithstanding any such compelled disclosure by the Receiving Party, such compelled disclosure will not otherwise affect the Receiving Party’s obligations hereunder with respect to Confidential Information so disclosed.

16.5. Return of Confidential Information. On termination or expiration of this Agreement, Receiving Party will return or destroy, at the Disclosing Party’s option, the Disclosing Party’s Confidential Information. Notwithstanding the foregoing, the Receiving Party will not be required to remove copies of the Disclosing Party’s Confidential Information from its backup media and servers, where doing so would be commercially impracticable. In addition, the foregoing destruction and return obligation will be subject to any retention obligations imposed on Receiving Party by law or regulation

16.6. Non-Exclusive Equitable Remedy. Each party acknowledges and agrees that due to the unique nature of the Confidential Information there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach or threatened breach may allow a party or third parties to unfairly compete with the other party, resulting in irreparable harm to such party, and therefore, that upon any such breach or any threat thereof, each party will be entitled to appropriate equitable and injunctive relief from a court of competent jurisdiction without the necessity of proving actual loss, in addition to whatever remedies either of them might have at law or equity before an arbitrator in accordance with the arbitration provision of this Agreement. Any breach of this Section 16 (Confidentiality) will constitute a material breach of this Agreement and be grounds for immediate termination of this Agreement in the exclusive discretion of the non-breaching party.

17. Limitation of Liability and Damages. NEITHER CXO Nexus NOR ITS VENDORS AND LICENSORS WILL HAVE ANY LIABILITY TO COMPANY OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, SALES, TRADING LOSSES, BUSINESS, DATA, OR OTHER INCIDENTAL, CONSEQUENTIAL, OR SPECIAL LOSS OR DAMAGE, INCLUDING EXEMPLARY AND PUNITIVE, OF ANY KIND OR NATURE RESULTING FROM OR ARISING OUT OF THIS AGREEMENT, INCLUDING USE OF OR INABILITY TO USE THE SERVICES, SUPPORT SERVICES, AND PROFESSIONAL SERVICES.  THE TOTAL LIABILITY OF CXO Nexus AND ITS VENDORS AND LICENSORS TO COMPANY OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT OR THE SERVICES, SUPPORT SERVICES, AND PROFESSIONAL SERVICES IN CONNECTION WITH ANY CLAIM OR TYPE OF DAMAGE (WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE) WILL NOT EXCEED THE TOTAL FEES PAID HEREUNDER BY COMPANY DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. THIS LIMITATION OF LIABILITY WILL APPLY EVEN IF THE EXPRESS WARRANTIES SET FORTH ABOVE FAIL OF THEIR ESSENTIAL PURPOSE.

18. Termination.
18.1. Termination. This Agreement will terminate (a) on the thirtieth (30th) day after either party gives the other written notice of a breach by the other of any material term or condition of this Agreement, unless the breach is cured before that day; or (b) upon written notice by either party, immediately, if (i) a receiver is appointed for the other party or its property; (ii) the other party becomes insolvent or unable to pay its debts as they mature in the ordinary course of business or makes a general assignment for the benefit of its creditors; or (iii) any proceedings (whether voluntary or involuntary) are commenced against the other party under any bankruptcy or similar law and such proceedings are not vacated or set aside within sixty (60) days from the date of commencement thereof.

18.2. Suspension of Services. Notwithstanding any other provision of this Agreement, CXO Nexus may, in its sole discretion, suspend Company’s access to the Services for any of the following reasons (a) to prevent damages or risk to, or degradation of, the Services; (b) to comply with any law, regulation, court order, or other governmental request; (c) to otherwise protect CXO Nexus from potential legal liability; or (d) in the event an invoice remains unpaid for more than forty-five (45) or more days from the invoice date. CXO Nexus will use reasonable efforts to provide Company with notice prior to or promptly following any suspension of the Services. CXO Nexus will promptly restore access to the Services as soon as the event giving rise to suspension has been resolved. This Section will not be construed as imposing any obligation or duty on CXO Nexus to monitor use of the Services.

18.3. Effect of Termination. Upon termination of this Agreement or termination of a particular Service for any reason: (a) Company’s and all End Users’ access to and use of the Services will cease as of the effective date of termination; (b) Company will pay to CXO Nexus all undisputed sums due to CXO Nexus for Services through the effective date of such expiration or termination (prorated as appropriate); and (c) at CXO Nexus’ standard time and materials rates, CXO Nexus will reasonably cooperate with Company in transitioning the Company Data back to Company.

19. General Provisions.
19.1. Publicity.  CXO Nexus may identify Company as a Company in its Company listings, Web sites, and other promotional materials.  In addition, CXO Nexus may issue a press release regarding the parties’ new relationship under this Agreement.

19.2. USA Patriot Act Notice. The U.S. federal USA Patriot Act (“USA Patriot Act”) provides generally for the operator of a communication host and law enforcement to be able to monitor any content, upon request of the operator. CXO Nexus anticipates fully complying with all its obligations, and availing itself of all its rights, under the USA Patriot Act.

19.3. Force Majeure. Except for the payment of money as described in Section 12 (Fees) of this Agreement, neither party will be liable for any failure or delay in performance under this Agreement which is due to any event beyond the reasonable control of such party, including without limitation, fire, explosion, unavailability of utilities or raw materials, Internet delays and failures, telecommunications failures, unavailability of components, labor difficulties, war, riot, act of God, export control regulation, laws, judgments or government instructions.

19.4. Entire Agreement; Amendment. This Agreement sets forth the entire agreement between the parties with regard to the subject matter hereof. No other agreements, representations, or warranties have been made by either party to the other with respect to the subject matter of this Agreement, except as referenced herein.

19.5. Governing Law, Venue, and Limitation of Actions. This Agreement will be construed according to, and the rights of the parties will be governed by, the law of the State of New York, without reference to its conflict of laws rules. The parties agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated exclusively in the state or federal courts (if permitted by law and a party elects to file an action in federal court) located in the State of New York.  This choice of venue is intended by the parties to be mandatory and not permissive in nature, and to preclude the possibility of litigation between the parties with respect to, or arising out of, this Agreement in any jurisdiction other than that specified in this Section.  Each party waives any right it may have to assert the doctrine of forum non conveniens or similar doctrine or theory or to object to venue with respect to any proceeding brought in accordance with this Section.  No action, regardless of form, arising out of this Agreement, may be brought by either party more than one (1) year after the cause of action has arisen.  The prevailing party in any action or proceeding will be entitled to recover its reasonable attorneys’ fees and costs.

19.6. No Third Party Beneficiaries.  Execpt as explicitly specified heretin, there are no third party beneficiaries to this Agreement.

19.7. Relationship of the Parties. The parties agree that CXO Nexus will perform its duties under this Agreement as an independent contractor. Nothing contained in this Agreement will be deemed to establish a partnership, joint venture, association, or employment relationship between the parties. Personnel employed or retained by CXO Nexus who perform duties related to this Agreement will remain under the supervision, management, and control of CXO Nexus.

19.8. Assignment. Company may not assign this Agreement without the prior written consent of CXO Nexus.

19.9. Severability. If any of the provisions of this Agreement are found or deemed by a court to be invalid or unenforceable, they will be severable from the remainder of this Agreement and will not cause the invalidity or unenforceability of the remainder of this Agreement.

19.10. Waiver. Neither party will by mere lapse of time without giving notice or taking other action hereunder be deemed to have waived any breach by the other party of any of the provisions of this Agreement. Further, the waiver by either party of a particular breach of this Agreement by the other party will not be construed as, or constitute, a continuing waiver of such breach, or of other breaches of the same or other provisions of this Agreement.

19.11. Survival. The following provisions will survive termination or expiration of this Agreement: 7 (Proprietary Rights), 8 (Company Data), 13.3 (Disclaimer of Warranties), 14 (CXO Nexus Indemnity) (for claims accruing prior to termination), 15 (Company Indemnity) (for claims accruing prior to termination), 16 (Confidentiality), 17 (Limitation of Liability and Damages), 18 (Termination), and 19 (General Provisions).

19.12. Notices. Any written notice or demand required by this Agreement will be sent by registered or certified mail (return receipt requested), personal delivery, overnight commercial carrier, or other guaranteed delivery to the other party at the address set forth herein. The notice will be effective as of the date of delivery if the notice is sent by personal delivery, overnight commercial courier or other guaranteed delivery, as of five (5) days after the date of posting if the notice is transmitted by registered or certified mail. Any party may change the address at which it receives notices by giving written notice to the other party in the manner prescribed by this Section.

19.13. Electronic Execution. This Agreement may be accepted in electronic form (e.g., by an electronic or digital signature or other means of demonstrating assent) and Company’s acceptance will be deemed binding between the parties. Company acknowledges and agrees it will not contest the validity or enforceability of this Agreement and related documents, including under any applicable statute of frauds, because they were accepted and/or signed in electronic form.