GXC ONYX SYSTEM TERMS OF USE

OUR TERMS OF USE WAS UPDATED ON 04/01/2024

GenXComm, Inc. (“GXC”) develops, markets, and sells a private cellular system based on its wireless cellular mesh-based technology, including the RAN Equipment and the ONYX Software (as defined below, the “ONYX System “). You (“Customer” or “you”) have purchased an ONYX System from GXC or a GXC authorized reseller (the “VAR”). Except as explicitly set forth in any purchase order and agreement that you entered into with the VAR, all references in these Terms of Use (as modified, the “Agreement”) to “purchases” or “sales” of the ONYX System (or any of its components) signify only the purchase of a license or the right to access and use the ONYX System pursuant to this Agreement.

THE TERMS OF THIS AGREEMENT GOVERN YOUR USE OF THE ONYX SYSTEM. IF YOU ARE AGREEING TO THE TERMS OF THIS AGREEMENT ON BEHALF OF YOUR ORGANIZATION, REFERENCES TO “YOU” OR “YOUR” SHALL MEAN YOU, YOUR ORGANIZATION AND ANY OTHER USER ACCESSING AND USING THE ONYX SYSTEM. BY USING, OR ACCESSING THE ONYX SYSTEM, OR OTHERWISE SIGNIFYING YOUR ACCEPTANCE OF THE TERMS OF THIS AGREEMENT, YOU REPRESENT AND WARRANT THAT (A) YOU ARE AUTHORIZED TO ENTER THIS AGREEMENT FOR AND ON BEHALF OF YOURSELF (AND YOUR ORGANIZATION), AND ARE DOING SO, (B) YOU (AND YOUR ORGANIZATION) CAN LEGALLY ENTER INTO THIS AGREEMENT AND (C) YOU HAVE READ AND UNDERSTAND AND AGREE THAT YOU (AND YOUR ORGANIZATION) AND EACH USER SHALL BE BOUND BY THIS AGREEMENT AND ALL MODIFICATIONS AND ADDITIONS PROVIDED FOR. IF YOU DO NOT HAVE THE LEGAL AUTHORITY TO BIND YOUR ORGANIZATION, PLEASE DO NOT ACCESS OR USE ONYX SYSTEM OR ANY OF ITS COMPONENTS. IF YOU DO NOT AGREE TO THIS AGREEMENT OR THE PRIVACY POLICY, YOU AND YOUR ORGANIZATION ARE PROHIBITED FROM USING THE ONYX SYSTEM AND ANY OF ITS COMPONENTS.

1. Definitions.
   Capitalized terms have the meanings set forth or referred to in this Section 1 or the applicable Order:
   
   “Authorized Users” means the employees, contractors and other third parties of Customer who have been authorized by Customer to access and use the ONYX System.
   
   “Customer Data” means the information, files and data inputted by Customer.
   
   “Designated Site” means the location specified in the Order Form.
   
   “Documentation” means the documentation provided from time to time by GXC in connection with the ONYX System or any related component.
   
   “ONYX System” means a system composed of various hardware, software and service components including (a) the radio access network equipment, including the mesh nodes (as modified, collectively, the “RAN Equipment”), (b) the cloud-hosted software for the Network Management System (NMS), Spectrum Access System (SAS), subscriber & SIM management and related software (as modified, collectively, the “ONYX Cloud”) and (c) the software that is installed on the customer premises on a dedicated server and used in collaboration with the cloud hosted software that includes core and other required components (as modified, collectively, the “ONYX Edge”).Together ONYX Cloud and ONYX Edge are referenced as (the “ONYX Software”).
   
   “Open Source Software” means any software or software component, module or package that contains, or is derived in any manner (in whole or in part) from, any software that is distributed as free software, open source software or similar licensing or distribution models, including, without limitation, software licensed or distributed under any of the following licenses or distribution models, or licenses or distribution models similar to any of the following: (i) GNU’s General Public License (GPL) or Lesser/Library GPL (LGPL); (ii) the Artistic License (e.g., PERL); (iii) the Mozilla Public License; (iv) the Netscape Public License; (v) the Sun Community Source License (SCSL); (vi) the Sun Industry Standards License (SISL); (vii) the BSD License; (viii) the MIT License and (ix) the Apache License.
   
   “Order Form” or “Order” means the ONYX System components that Customer has agreed to purchase, as detailed in the applicable quote or other similar document provided by GXC or VAR.
   
   “Purpose” means use of the ONYX System by the Customer.
   
   “Subscription Period” means the period Customer will pay the subscription fees for the use of the ONYX Software, as specified in each Order. At the end of a Subscription Period, it will automatically renew for the same period, unless the parties agree in writing otherwise at least sixty (60) days prior to the end of the Subscription Period.
   
   “Third-Party License” means any of the Third-Party Software Licenses (as defined in Section 4.1) or Open-Source Licenses (as defined in Section 4.2).
   
   “Third-Party Licensor” means the licensor of any Third-Party Software or Open-Source Software.
   
   “Third-Party Software” means any software or software component, module, or package (other than Open-Source Software) that contains or is derived in any manner (in whole or in part) from, any software that is licensed or distributed by a third party.

2. Scope.
   
   The ONYX System is a private cellular system based on GXC’s wireless cellular mesh-based technology. This Agreement is a legal agreement between GXC and Customer, as a single entity, that has obtained the right to access and use the ONYX System and the Documentation from GXC subject to, and in accordance with, the terms and conditions of this Agreement and the applicable Order.

3. Grant of Right to Access and Use.
   
   3.1       Right to Access and Use. Subject to the terms of this Agreement, GXC grants to Customer and its Authorized Users a limited, non-exclusive, non-transferable, and royalty-free (a) right to access and use the ONYX System and (b) license to use the ONYX Software solely in connection with the access and use of the ONYX System. GXC and its Third-Party Licensors reserve all other rights and licenses in and to the ONYX System not expressly granted to Customer under this Agreement. 
   
   3.2       Proprietary Rights Protection.
   
   
   • 3.2.1     Intellectual Property Rights. The ONYX System and all associated Documentation, and copyrights and other intellectual property rights are protected by law and international treaties. Except for any RAN Equipment that Customer has purchased from GXC or a VAR, this Agreement confers no ownership rights to Customer and is not a sale of any rights in the ONYX System. Upon payment of the prices for the RAN Equipment as specified in the applicable Order, Customer shall own the RAN Equipment unless otherwise provided in the applicable Order. Customer does not acquire any rights, express or implied, in the ONYX System, other than those rights specified in this Agreement. Except as provided in this Section 3.2.1, GXC or its Third-Party Licensors shall own and retain ownership of all right, title, and interest in and to (i) the ONYX System and any copies, modifications, enhancements, and derivative works thereof; and (ii) all associated intellectual property rights (including any patents, copyrights, and trademarks) embodied within the foregoing subparagraph (i).
   • 3.2.2     Customer Data. GXC will not have access, directly or indirectly, to any Customer Data and acknowledges that, as between GXC and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Notwithstanding the foregoing, Customer agrees that the ONYX System may occasionally collect, store, send and use aggregated and anonymized system and usage data (collectively, the “Usage Data”) solely for its own internal reporting and analysis and developing and improving the ONYX System and GXC’s business. The Usage Data does not, and will, not contain any Customer Data.
   • 3.2.3     Restrictions. Customer shall not (a) copy, modify, adapt, translate create derivative works or improvements or merge copies of any components of the ONYX System or the Documentation except as specifically provided in this Agreement;(b) translate, reverse engineer, de-compile or disassemble any components of the ONYX System, except to the extent that applicable law explicitly prohibits this contractual restriction; (c ) attempt in any way to access GXC’s binaries after this Agreement has terminated or otherwise in violation of the terms and conditions of this Agreement or applicable law; (d) defeat, circumvent or disable any copy protection mechanism or mechanism in any components of the ONYX System used to limit the duration of access and use or access to functionality or capacity that is not permitted under this Agreement or the Documentation; (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the ONYX System or any related component to any third party other than Authorized Users, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service; (f) transfer the ONYX System or any related component that is in a hosted environment out of any such environment; (g) delete or in any manner alter the copyright, trademark, and other proprietary rights notices of GXC and/or its Third-Party Licensors appearing on the ONYX System or any related components, or any other GXC hardware, software, or products; (h) access or use the ONYX System or any related component in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property rights or other rights of any third party, or that violates any applicable law; or (i) access or use any Third-Party Software or Open Source Software as standalone software and/or except as otherwise provided in the applicable Third-Party License
   3.3       Activation Keys. Access and use of certain components of the ONYX System, including the ONYX Software, may require an activation key provided by GXC (collectively, “Activation Keys”). Each Activation Key is unique to a specific Customer. Customer or its Authorized Users will not use the ONYX System without an authentic Activation Key and will not circumvent the Activation Key feature of the ONYX System, including, without limitation, reassigning or reusing an Activation Key, or permitting, supporting, or encouraging any misemployment, misuse, or fraudulent use of any Activation Key. Customer shall promptly notify GXC of any use of any component of the ONYX System without authentic Activation Keys or other unauthorized use of any component of the ONYX System of which it becomes aware.
   
   3.4       Feedback. If Customer provides to GXC any suggestions, comments, improvements, enhancement requests, recommendations, corrections, ideas or other feedback relating to the ONYX System, including any of its components (collectively, “Feedback” ), Customer hereby grants GXC a non-exclusive, worldwide, fully paid-up, royalty-fee, non-terminable, perpetual, irrevocable license to use, disclose, modify, reproduce, license, distribute, commercialize, and otherwise freely exploit any such Feedback, and all related intellectual property without restriction of any kind and without any right of accounting.

4. Third-Party and Open Source Software.
   
   4.1       Customer hereby acknowledges that the ONYX System and the related components may utilize or include Third-Party Software that must be licensed under the specific license terms applicable to such Third-Party Software.  Acknowledgements, licensing terms, copyright notices, disclaimers, and other terms applicable to such Third-Party Software (the “Third-Party Software Licenses”) are available upon request by contacting GXC. Customer (a) acknowledges that any such Third-Party Software License is solely between Customer and the applicable Third-Party Licensor of the Third-Party Software and (b) agrees to bound by, and shall comply with, the terms of any such applicable Third-Party Software License.  If Customer does not agree to the terms and conditions of any Third-Party Software License, Customer shall not access and use the ONYX System or any related component. 
   
   4.2       Customer hereby acknowledges that the ONYX System and the related components may also utilize or include Open-Source Software that must be licensed under the specific license terms applicable to such Open-Source Software.  Acknowledgements, licensing terms, copyright notices and disclaimers for such Open-Source Software (the “Open-Source Licenses”) are available upon request by contacting GXC. Customer agrees to review any such Open-Source Licenses and other related documentation in order to determine which portions of the ONYX System or related components are Open-Source Software and are licensed under an Open-Source License. To the extent that any such Open-Source License requires that GXC provide Customer the rights to copy, modify, distribute or otherwise use any Open-Source Software that are inconsistent with the limited rights granted to Customer in this Agreement, then such rights in the applicable Open-Source License shall take precedence over the rights and restrictions granted in this License, but solely with respect to such Open-Source Software. Customer (a) acknowledges that any such Open-Source License is solely between Customer and the applicable Third-Party Licensor of the Open-Source Software and (b) agrees to bound by, and shall comply with, the terms of any such applicable Open-Source License. If Customer does not agree to the terms and conditions of any Open-Source Software Agreement, Customer shall not access and use the ONYX System and any related components.
   
   4.3       Open-Source Software is distributed WITHOUT ANY WARRANTY, WITHOUT EVEN THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR TITLE. Where the terms of an Open-Source License entitle Customer to the source code of any such Open-Source Software, such source code is available under the terms of the applicable Open-Source License by contacting GXC at the address above and identifying the specific Open-Source Software for which Customer wants the source code.

5. Purchases through a VAR.
   
   If Customer has purchased the ONYX System through a GXC authorized VAR, then, (a) if the terms of Customer’s agreement with the VAR conflict with terms this Agreement, then the term of this Agreement will prevail and (b) Sections 6, 7 and 8 of this Agreement shall not apply.

6. GXC Product Purchase and Payment.
   
   6.1       Purchasing. All purchase orders must be in writing and submitted to GXC and will be substantially in the form of the Order Form. Without limiting the foregoing, all Order Forms must contain (a) the associated GXC quote number, (b)  the published GXC product name, description and product ID# for each ONYX System component being ordered, (c) the bill and ship to name and address, (d) the name and email address of the primary contact of the Customer, and (e) language stating, “This purchase order is governed by the terms of the GXC Terms of Use”. Customer purchase orders will not contain terms in conflict with those provided in this Agreement or the Order Form. 
   
   6.2       Prices and Fees. In consideration for the rights granted under the Agreement, you agree to pay the prices for the RAN Equipment, other equipment, and the subscription fees for the right to access and use the ONYX System and all other fees as specified in the applicable Order Form. Customer will pay annually in advance for the ONYX Software subscription for the Subscription Period, as specified in the applicable Order Form. Customer will pay the support fees as specified in the applicable Order Form annually in advance for the applicable Term. At the end of the Subscription Period, the period will automatically be renewed for the same duration of time, unless either party provides the other party with at least ninety (90) days’ written notice of non-renewal prior to the end of the current Subscription Period.
   
   6.3       Payment. Invoicing for RAN Equipment will occur upon the shipment date. Invoicing for the subscription and support fees for the ONYX Software will commence thirty (30) days after the shipment date of the RAN Equipment. Payment of the invoices will be due within thirty (30) days of the date of the applicable invoice.
   
   6.4       Taxes. All prices and fees are exclusive of duties, tariffs, use, sales, excise, VAT and other similar taxes and insurance charges. Any such applicable duty, tariff, tax, or charge shall be paid by Customer, in addition to the prices and fees quoted or invoiced.
   
   6.5       Past Due Fees. Interest accrues on the unpaid balance of overdue invoices at a rate of one percent (1.0%) per month (or, if lower, the amount permitted by law) from the original due date of the invoice.
   
   6.6       Non-refundable. ALL PRICES AND FEES ARE NON-REFUNDABLE, NON-CANCELLABLE AND NON-CREDITABLE UNLESS OTHERWISE SPECIFICALLY PROVIDED IN THE APPLICABLE ORDER, THIS AGREEMENT OR REQUIRED BY LAW.

7. Delivery of Products.
   
   7.1.       Shipping Terms. GXC will ship to Customer the hardware components ordered by Customer  CPT (Incoterms 2020) from the GXC’s facility or third party logistics location.  The price of all products, unless otherwise specifically stated in GXC’s quotation or order acknowledgement, excludes the fees for shipment to Customer’s location.  If requested by Customer, GXC will arrange for selection of a shipping company and shipment on Customer’s behalf. GXC will include the shipping fees on the invoice to Customer. In the absence of shipping instructions from Customer, GXC reserves the right to select the means of transportation and routing. Unless otherwise advised by Customer, GXC will insure components of the ONYX System to their full value or declare full value thereof to the transportation company and all shipping and insurance costs shall be billed to Customer’s account.  Loss of, or damage to, any ONYX System components shall not release, reduce, or in any way affect Customer’s obligation to pay for same. GXC will assist Customer seeking recovery for any loss or damage to the ONYX System components while in transit.
   
   7.2.       Risk of Loss and Title Transfer. Unless otherwise agreed to in writing by GXC, title and risk of loss or damage shall pass to Customer upon delivery of the ONYX System components to the transportation company at GXC’s facility or third party logistics location.
   
   7.3.      Cancellation. Once accepted, Purchase Orders may not be cancelled without written approval from GXC.  Except as set forth in this Agreement, there is no right of return for the ONYX System components or right to cancel subscriptions to the ONYX System.
   
   7.4.       Inspection Rights. Customer shall have the right to inspect the ONYX System and other hardware (e.g., Edge appliance or antenna) upon delivery. Customer’s exclusive remedy with respect to any defective or non-conforming hardware products shall be to have GXC replace such defective or nonconforming hardware or credit Customer’s account, whichever GXC may elect in its sole discretion.  If Customer reports to GXC a defective hardware Product within thirty (30) days of delivery, then GXC will ship to Customer an advance replacement at GXC’s cost in exchange for the defective hardware delivered to Customer.  To avoid additional charges, Customer must return the defective product within fifteen (15) days of receipt of the replacement product. If product has not been returned within fifteen (15) days, Customer will be billed for the additional product that has been shipped out. If GXC finds that any hardware product has been returned which is not defective or non-conforming, GXC may charge Customer a $200 fee for testing and examination.
   
   7.5.       Installation. Customer will install the ONYX System using a Certified Professional Installer (“CPI”). A CPI is an individual trained and currently validly certified from an accredited CPI Training Program based on the relevant FCC Part 96 rules and associated technical best practices for the Citizens Broadband Radio Spectrum(CBRS). A CPI does not necessarily have to physically install the Equipment but must certify the installation parameters with respect to the designated CBRS registration data provided to the SAS and is personally responsible for the correctness of this data.

8. Technical Support.
   
   As more fully described in www.gxc.io/technical-support, technical support includes assistance to you in connection with your use of the ONYX System, and updates to the ONYX System or to fix bugs, correct errors, or enhance functionality that GXC releases on a generally available commercial basis to all subscribers of the ONYX System (as modified from time to time, collectively “Technical Support”).  Pricing and related terms for the Technical Support fees, (the “Support Fees”), are set forth in the applicable Order Form. Any such Technical Support is limited to correcting errors, bugs or other issues with the ONYX System and does not extend to any Third-Party Software or Open Source Software or technologies you use with the ONYX System, including any issues arising from modifications to the ONYX System not made or authorized by GXC, or the use of the ONYX System other than as authorized by this Agreement.

9. Notice to U.S. Government End Users.
   
   The ONYX System and the related components and Documentation qualify as commercial items as that term is defined at Federal Acquisition Regulation (FAR) (48 C.F.R.) 2.101, consisting of commercial computer software and commercial computer software documentation as such terms are used in FAR 12.212.  Consistent with FAR 12.212 and DoD FAR Supp. 227.7202-1 through 227.7202-4, and notwithstanding any other FAR or other contractual clause to the contrary in any agreement into which this End-User Agreement may be incorporated, Customer may provide to Government end user or, if this Agreement is direct, Government end user will acquire the RAN Equipment and the right to access and use ONYX System and Documentation with only those rights set forth in this End-User Agreement. Use of the ONYX System or any of its components, or Documentation constitutes agreement by the Government that the ONYX System and Documentation are commercial computer software and documentation and constitutes acceptance of the rights and restrictions herein.

10. LIMITED WARRANTIES.
    
    10.1      Customer acknowledges and agrees that (a) the ONYX System is a closed system and that any devices, hardware or software that is added or connected, directly or indirectly, to the ONYX System may adversely affect the performance of the ONYX System or its components and (b) GXC shall have no liability or responsibility for any devices, hardware or software that that is added or connected, directly or indirectly, to the ONYX System or for their impact on the performance of the ONYX System.
    
    10.2      EXCEPT AS SPECIFICALLY PROVIDED IN THE APPLICABLE ORDER, www.gxc.io/limited-warranties OR THIS AGREEMENT, THE ONYX SYSTEM (INCLUDING ANY RELATED COMPONENTS, THIRD-PARTY SOFTWARE AND OPEN SOURCE SOFTWARE) AND ANY SERVICES ARE PROVIDED “AS IS.” GXC AND ITS THIRD-PARTY LICENSORS DISCLAIM ANY AND ALL WARRANTIES AND GUARANTEES, EXPRESS, IMPLIED OR OTHERWISE, ARISING, WITH RESPECT TO THE ONYX SYSTEM, THE SPECIFICATIONS, OR DOCUMENTATION DELIVERED HEREUNDER, INCLUDING BUT NOT LIMITED TO WARRANTIES THAT THEY ARE FREE OF DEFECTS, VIRUS FREE, ABLE TO OPERATE ON AN UNINTERRUPTED BASIS, THE WARRANTY OF MERCHANTABILITY, WARRANTY OF NON-INFRINGEMENT OR TITLE AND THE WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. GXC MAKES NO WARRANTY CONCERNING THE COMPLETENESS OR ACCURACY OF THE CUSTOMER DATA OR INFORMATION OBTAINED OR DERIVED THROUGH THE USE OF THE ONYX SYSTEM.  GXC AND ITS THIRD-PARTY LICENSORS DO NOT WARRANT THAT THE FUNCTIONALITY OF THE ONYX SYSTEM, WILL MEET CUSTOMER’S, THE AUTHORIZED USERS’, OR ANY OTHER PARTY’S REQUIREMENTS OR THAT ERRORS WILL BE CORRECTED, NOR DO THEY WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE ONYX SYSTEM. GXC HAS NOT AUTHORIZED ANYONE TO MAKE ANY REPRESENTATIONS OR WARRANTIES OTHER THAN AS PROVIDED ABOVE OR TO OTHERWISE MODIFY THE TERMS OF THIS AGREEMENT.  THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF THE ABOVE-STATED WARRANTY FAILS OF ITS ESSENTIAL PURPOSE.

11. LIMITATION OF LIABILITY.
    
    11.1      TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, GXC AND ITS THIRD-PARTY LICENSORS WILL NOT HAVE ANY OBLIGATION OR LIABILITY, WHETHER ARISING IN CONTRACT (INCLUDING WARRANTY), TORT (INCLUDING ACTIVE, PASSIVE OR IMPUTED NEGLIGENCE, STRICT LIABILITY OR PRODUCT LIABILITY) OR OTHERWISE FOR ANY PUNITIVE, EXEMPLARY, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF DATA, BUSINESS INTERRUPTION, LOSS OF REVENUE OR PROFITS, LOSS OF BUSINESS OR OTHER FINANCIAL LOSS ARISING OUT OF OR IN CONNECTION WITH THE APPLICABLE ORDER, THIS AGREEMENT, THE ONYX SYSTEM, INCLUDING ANY RAN EQUIPMENT, THE ONYX SOFTWARE AND ANY OTHER COMPONENT OF THE ONYX SYSTEM, OR ANY OTHER GOODS OR SERVICES FURNISHED TO CUSTOMER BY GXC OR OTHER THIRD PARTY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN THOSE JURISDICTIONS, SUCH INAPPLICABILITY WILL NOT AFFECT THE REMAINDER OF THE PROVISIONS IN THIS SECTION.
    
    11.2      IN NO EVENT SHALL GXC’S AND ITS THIRD-PARTY LICENSORS’ LIABILITY ARISING OUT OF THIS AGREEMENT, THE ONYX SYSTEM, INCLUDING ANY RAN EQUIPMENT, THE ONYX SOFTWARE AND ANY OTHER COMPONENT OF THE ONYX SYSTEM, OR OTHERWISE EXCEED THE SUBSCRIPTION FEES PAID TO GXC DURING THE ONE (1) YEAR PERIOD PRECEDING THE INCIDENT GIVING RISE TO THE CLAIM.
    
    11.3      THE ESSENTIAL PURPOSE OF THIS SECTION 11 IS TO LIMIT THE POTENTIAL LIABILITY OF GXC AND ITS THIRD-PARTY LICENSORS ARISING OUT OF THE ONYX SYSTEM, INCLUDING ANY RAN EQUIPMENT, THE ONYX SOFTWARE AND ANY OTHER COMPONENT OF THE ONYX SYSTEM, WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE, OR OTHERWISE. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

12. Confidential Information.
    
    12.1      Confidential Information. In connection with this Agreement, each Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”) Confidential Information. Subject to Section 12.2, “Confidential Information” means information in any form or medium (whether oral, written, electronic or other) that Disclosing Party considers confidential or proprietary, including information consisting of or relating to Disclosing Party’s or its affiliates’ technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated or otherwise identified as “confidential”.
    
    12.2      Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party’s knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
    
    12.3      Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall during the Term and for five (5) years thereafter: (a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement. (b) except as may be permitted under Section12.5, not disclose or permit access to Confidential Information other than to its employees and other representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 12; and (iii) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 12; (c) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its most sensitive information and in no event less than a reasonable degree of care; (d) promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and take all reasonable steps to prevent further unauthorized use or disclosure; and (e) ensure its employees’ and other representatives’ compliance with and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section 12.
    
    12.4      Trade Secrets. Notwithstanding any other provisions of this Agreement, the Receiving Party’s obligations under this Section 12 with respect to any Confidential Information that constitutes a trade secret under any applicable Law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under one or more such applicable Laws other than as a result of any act or omission of the Receiving Party or any of its Representatives.
    
    12.5      Compelled Disclosures. Receiving Party may disclose Confidential Information pursuant to a valid order issued by a court or government agency or as otherwise required by law, provided that (a) Receiving Party provides Disclosing Party with prior written notice of such obligation and the opportunity to oppose such disclosure or obtain a protective order; (b) Receiving Party provides reasonable assistance to Disclosing Party, at Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure (c) Receiving Party only discloses such Confidential Information as is required to comply with such order or law (as advised by competent counsel) and (d) no such disclosure shall otherwise exempt such Confidential Information from being treated as confidential under this Section 12.

13. Term and Termination.
    
    13.1      Term. This Agreement shall, unless terminated earlier pursuant to any of its express provisions, continue thereafter while there are any active Subscription Periods. Upon expiration or termination of all Subscription Periods , this Agreement shall automatically terminate, unless the parties agree otherwise in writing prior to this termination.
    
    13.2      Termination for Cause. (a) A party may terminate the applicable Order and this Agreement at any time upon any breach of any material obligation under this Agreement by the other party which is not cured within fifteen (15) days after written notice of such breach is provided by the non-breaching party.  (b) A party may terminate this Agreement and any applicable Order, effective immediately upon written notice to the other party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
    
    13.3      Suspension. Without limiting GXC’s remedies, if Customer fails to pay any prices, fees or other amounts when due, then upon at least five (5) days’ prior written notice to Customer, GXC may, in addition to any other rights and remedies that it may have, suspend access and use of the ONYX System until all outstanding amounts (including any accrued interest) have been paid in full.
    
    13.4      Effects of Termination. Upon expiration or termination of this Agreement, (a) Customer’s use of and access to the ONYX System shall immediately cease; (b) all prices, fees and other amounts owed to GXC shall be immediately due and payable by Customer; (c) at its sole cost and expense, Customer will return within ten (10) days to GXC all hardware, (other than any RAN Equipment or other equipment purchased by Customer), and other equipment provided by GXC in connection with the ONYX System (in the same condition as originally provided, normal wear and tear excepted) and the Documentation and all copies thereof to GXC as certified in writing by an officer of Customer. Customer shall be solely responsible for the costs and expenses associated with repairing or replacing any damaged GXC-owned equipment and, if any component of the ONYX System has not been received by GXC according to the terms of this Section 13.4, GXC will invoice Customer for the cost of any ONYX System components, plus any related services utilized. Customer shall pay the invoice in full within thirty (30) days from receipt. Within ten (10) days of the effective date of termination each party shall: (a) return to the other party, or at such other party’s option, such party shall destroy, all items of Confidential Information then in such party’s possession or control, including any copies, extracts or portions thereof, and (b) upon request shall certify in writing to such other party that it has complied with the foregoing.
    
    13.5      Survival. Upon the termination of this Agreement for any reason, all of the parties’ respective rights and obligations hereunder shall cease, except that Sections 1, 3.2, 3.4, 4, 6, 10, 11, 12, 14, 15 and this Section 13.5 shall survive the expiration or termination.

14. Indemnification.
    
    14.1      GXC Indemnification. GXC shall indemnify, defend and hold harmless Customer and its directors, officers and employees from and against any and all claims, actions, liabilities, losses, expenses, damages and costs, including, but not limited to, reasonable attorneys’ fees, brought by or resulting from claims by third parties (each, a “Claim”) that are based on or arising out of any actual or alleged (a) gross negligence or willful misconduct of, or breach of the terms of this Agreement (including a breach of GXC’s representations and warranties) by, GXC or its employees or other representatives or (b) infringement of any third-party’s US intellectual property rights (an “Infringement Claim”) as a result of the use of the ONYX System including any RAN Equipment or the ONYX Software (but excluding any Third-Party Software) by Customer or any of its Authorized Users in accordance with this Agreement; provided that GXC shall not be obligated to indemnify Customer to the extent that any Infringement Claim arises out of or results from (collectively, the “Infringement Claim Exclusions”):
    • (i)         any combination of the ONYX System, including any of the RAN Equipment, ONYX Software or other components with any other system, hardware, software, materials or intellectual property not provided or authorized in writing by GXC, if such infringement would not have occurred but for such combination.
    • (ii)        any modification of the ONYX System, including any of the RAN Equipment, ONYX Software, or other components not provided or authorized in writing by GXC
    • (iii)       Customer’s (or any of its Authorized Users’) use of the ONYX System, including any of the RAN Equipment, ONYX Software, or other components after GXC’s notice to Customer of such activity’s alleged or actual infringement, misappropriation or other violation of a third party’s rights.
    • (iv)       Customer’s (or any of its Authorized Users’) use of the ONYX System, including any of the RAN Equipment, ONYX Software, or other components by or on behalf of Customer (or any of its Authorized Users) that is outside the purpose, scope or manner of use authorized by this Agreement or in any manner contrary to GXC’s instructions.
    If an Infringement Claim is made by a third party against Customer or if GXC believes that a likelihood of such an Infringement Claim exists, then GXC, in a reasonable exercise of its discretion, may suspend the use of the affected part of the ONYX System and shall use commercially reasonable efforts to either procure for Customer the right to continue using the affected part of the ONYX System, including the RAN Equipment, the ONYX Software or modify the affected part of the ONYX System to make it non-infringing, or replace it with non-infringing alternatives that are similar. If none of the foregoing is reasonably available to GXC, as determined by GXC in its sole discretion, GXC may terminate this Agreement and any applicable Order, in which case Customer shall immediately cease using the ONYX System, including RAN Equipment, the ONYX Software and GXC shall refund any fees pre-paid for the period after the effective date of termination.
    
    14.2      Customer Indemnification. Customer shall indemnify, defend and hold harmless GXC and its directors, officers and employees from and against any and all Claims, that are based on or arising out of any actual or alleged (a) gross negligence or willful misconduct of, or breach of the terms of this Agreement (including a breach of Customer’s representations and warranties) by, Customer or its employees or other representatives; (b) any Infringement Claim Exclusions or (c) violation of any applicable law by Customer or its employees or other representatives.
    
    14.3      Indemnification Procedures. Each party shall promptly notify the other party in writing of any claim for which such party believes it is entitled to be indemnified pursuant to Section 14.1 or Section 14.2. The party seeking indemnification (the “Indemnified Party”) shall cooperate with the other party (the “Indemnifying Party”) at the Indemnifying Party’s sole cost and expense. The Indemnifying Party shall immediately take control of the defense and investigation of such claim and shall employ counsel reasonably acceptable to the Indemnified Party to handle and defend the same, at the Indemnifying Party’s sole cost and expense. Notwithstanding the foregoing, the Indemnifying Party shall have no right to settle any such claim to the extent that such settlement would require the payment of any amounts or admission of responsibility by the Indemnified Party, without the Indemnified Party’s prior written consent, which consent shall not be unreasonably withheld or delayed. The Indemnified Party’s failure to perform any obligations under this Section 14.3 will not relieve the Indemnifying Party of its obligations under this Section 14 except to the extent that the Indemnifying Party can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnified Party may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.

15. Miscellaneous.
    
    15.1      Independent Contractors. Customer is an independent contractor under this Agreement, and nothing herein shall be construed to create a partnership, joint venture or agency relationship between the parties hereto. Customer shall have no authority to enter into agreements of any kind on behalf of GXC or otherwise to bind or obligate GXC to any third party in any manner whatsoever.
    
    15.2      Notices. Any notice, request, demand or other communication (other than payments) required or permitted hereunder may be sent by United States mail, postage prepaid, or by facsimile or electronic mail,  by overnight courier or messenger, in each case addressed to the parties at the addresses, facsimile or email address provided in the applicable Order, or to such other address or person as the parties may from time to time designate in writing to the other in accordance with this Section 15.2. Any such notice or payments shall be deemed to be properly made to the intended party under this Agreement only when received by such party at the foregoing address.
    
    15.3      Force Majeure. The obligations of a party (other than payment) will be suspended by the occurrence of any event beyond its reasonable control and not caused by its negligence, that renders its performance impossible including, acts of God, war, fire, flood, accident, strike, casualty, pandemic, power failures, electrical strikes, Internet disruption, governmental acts, orders or restrictions or inability to obtain suitable and sufficient labor and materials (each, a “Force Majeure Event”). The party invoking force majeure shall (i) send written notice thereof to the other within a reasonable time after the invoking party knew or should have known that performance would be delayed or prevented due to the force majeure and (ii) take reasonable steps to limit the duration and effect of any such force majeure.
    
    15.4      Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Texas, without regard to its conflict of law principles. The parties disclaim the United Nations Convention on Contracts for the International Sale of Goods, which shall not apply to this Agreement or the parties’ performance hereunder.
    
    15.5      Dispute Resolution and Arbitration.
    • (a)  If any controversy, claim or dispute arising out of or relating to this Agreement or the ONYX System, including any RAN Equipment and the ONYX Software, or any other related component,  by Customer, including the breach or interpretation of this Agreement (collectively, a “Dispute”) is not resolved within thirty (30) days from the date that either party provides the other party with written notice of the existence thereof, then each party shall designate an executive who is authorized to investigate, negotiate and settle the Dispute. The executives shall exercise good faith efforts to settle the Dispute.  If the executives do not resolve the Dispute within thirty (30) days (or an extended period if they so agree), then the parties shall resolve the Dispute pursuant to binding arbitration in accordance with Section 15.5(b). No arbitration or any other action pertaining to a Dispute shall be pursued unless this dispute resolution procedure has been exhausted.  Notwithstanding the foregoing, either party at any time may pursue equitable relief before any court of competent jurisdiction in accordance with Section 15.14.
    • (b)   Any Dispute that is not resolved in accordance with Section 15.5 (a) shall be settled by binding arbitration in accordance with the Arbitration Rules of the American Arbitration Association (or if Customer is located outside the United States, the International Arbitration Rules of the American Arbitration Association( (“AAA”), and judgment upon the award rendered by the arbitrator may be entered in any court have jurisdiction thereof. Any such arbitration shall be held in Austin, Texas. Unless otherwise agreed by the parties, the Dispute shall be determined by one arbitrator mutually agreed upon by the parties, or if the parties cannot so mutually agree, a single arbitrator with significant relevant experience appointed in accordance with the rules of the AAA. The award shall be in writing and include the findings of fact and conclusions of law upon which it is based.  The award shall be in writing and include the findings of fact and conclusions of law upon which it is based. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION OR COUNTERCLAIM ARISING OUT OF OR RELATING TO ANY CLAIM OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT. The arbitration shall be governed by the substantive laws of the State of Texas, without regard to its conflicts-of-law rules, and by the arbitration law of the Federal Arbitration Act (Title 9, U.S. Code). Judgment upon the award rendered may be entered in any court having jurisdiction. Subject to Section 15.5(c), the cost and expenses for the arbitration shall initially be shared equally by the parties. The arbitral proceedings and all pleadings and written evidence shall be in the English language. If either party fails to proceed with arbitration as provided in this Agreement, or unsuccessfully seeks to stay the arbitration, or fails to comply with the arbitration award, the other party shall be entitled to be awarded costs, including reasonable attorney’s fees, paid or incurred in successfully compelling such arbitration or successfully defending or enforcing the award.
    • (c)        In the event that either party institutes any arbitration, legal suit, action or proceeding against the other party arising out of or relating to any Dispute, the prevailing party in the arbitration, suit, action or proceeding shall be entitled to receive in addition to all other damages to which it may be entitled, the costs incurred by such party in conducting the suit, action or proceeding, including reasonable attorneys’ fees and expenses and court costs.
    15.6      Entire Agreement. This Agreement, and the applicable Order, constitutes the entire agreement between the parties relating to the subject matter hereof and supersedes any written or oral agreements previously existing between the parties and shall not be qualified or interpreted by any trade usage or prior course of dealing unless expressly authorized in writing by GXC.
    
    15.7      Amendments. Except as otherwise provided in this this Agreement, no amendment to this Agreement shall be valid or enforceable unless it is in writing and signed by an authorized representative of each of the parties hereto.
    
    15.8      No Waiver. The failure of either party to require performance of any provision of this agreement will not affect in any way the right to require such performance at any time thereafter, nor will the waiver by either party of a breach of any provisions of this Agreement be construed as a waiver of any future breach.
    
    15.9      Severability. If any term, provision, covenant, or condition of this Agreement is held to be invalid or unenforceable for any reason, the remainder of this Agreement will continue in full force and effect as if this Agreement had been executed without the invalidated provision. In addition, the parties agree to substitute for the invalidated provision a valid provision, which most closely approximates the intent and economic effect of the invalidated provision.
    
    15.10    Assignment. Customer shall not assign this Agreement, or any of its rights and obligations hereunder, whether voluntarily or by operation of law, without the prior written consent of GXC. Subject to the foregoing, this Agreement will inure to the benefit of and be binding upon the successors and assigns of the parties.
    
    15.11    Section Headings. Section headings in this Agreement and the Exhibits hereto are solely for convenience and will not be considered in its interpretation.
    
    15.12    Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original and all of which together will constitute one and the same instrument.
    
    15.13    Foreign Corrupt Practices Act.  Distributer shall comply with the U.S. Foreign Corrupt Practices Act and any other similar anti-corruption laws and regulations and with GXC’s established corporate policies (as developed or modified from time to time) regarding foreign business practices. Customer and its employees and agents shall not directly or indirectly make an offer, payment, promise to pay, or authorize payment, or offer a gift, promise to give, or authorize the giving of anything of value for the purpose of influencing an act or decision of an official of any government within the Territory or the United States Government (including a decision not to act) or inducing such a person to use his influence to affect any such governmental act or decision in order to assist Customer or GXC in obtaining, retaining or directing any such business.
    
    15.14    Equitable Remedies. Each party acknowledges that if the other party were to breach the terms of Sections 3, 12 and 14, the harm to such other party would be irreparable. Accordingly, each party agrees that in the event of any such breach, such other party shall be entitled to obtain injunctive relief without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy.
    
    15.15    Contract Interpretation. Customer has reviewed this Agreement and agrees that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement or any amendments thereto.