GXC ONYX SYSTEM TERMS OF USE LUX

OUR TERMS OF USE WAS UPDATED ON 05/23/2024

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”). 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 for the Purpose pursuant to this Agreement.

IMPORTANT! THESE TERMS OF USE (AS MODIFIED, THE “AGREEMENT”) GOVERN YOUR ACCESS AND 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 CLICKING “I AGREE”, 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 PROHBITED 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 in this Agreement:

    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 solely for the Purpose.

    Customer Data” means the information, files and data inputted by Customer.

    Designated Site” means the location(s) for the Purpose, as specified in the GXC quote document.

    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 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.

    Purpose” means the access and use of the ONYX System by the Customer only as permitted in the associated GXC quote document.

    Subscription Period” means the period Customer will pay the subscription fees for the use of the ONYX Software, as specified in the GXC quote document. 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 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.
  1. Scope.

    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 for the period of time specified in one or more associated GXC quote document(s), (the “Use Period”).
    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.

    2. 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 2.2, 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. 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; or (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;

    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.
  1. Support.
    1. Technical support includes assistance in connection with your use of the ONYX System, and updates to the ONYX System, bug fixes, error corrections, or and any enhanced functionality that GXC releases on a generally available commercial basis to all subscribers of the ONYX System without additional charge (as modified from time to time, collectively “Technical Support”). Technical Support does not extend to any technologies that you may use with the ONYX System, 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.

    2. GXC shall use commercially reasonable efforts during normal business hours to provide remote Technical Support to Customer during the Use Period, for the operation of the ONYX System.

    3. Customer will provide secure, high bandwidth remote access to the GXC equipment and network for commissioning and software support, including software updates.
  1. Fees, Payment, Taxes and Delivery..

    If Customer has purchased the ONYX System through a GXC authorized VAR, then the terms of this Section 4 shall not apply.
    1. Prices and Fees. In consideration for the rights granted under the Agreement, you agree to pay the prices for the RAN Equipment and/or the subscription fees, if any, for the right to access and use the ONYX System and all other fees as specified in the GXC quote document.

    2. Payment. GXC will invoice any RAN equipment and/or subscription fees per the terms of GXC quote document. Invoices will be due within thirty (30) days of the date of the invoice.

    3. Payment Method. ACH is GXC’s preferred payment method as it makes payment collection easy for all parties. Alternative payment methods GXC accepts include wire transfers and credit cards which may carry additional fees.

    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.

    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. Shipping Terms. GXC will ship to Customer the hardware components ordered, as specified in the GXC quote document, by 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. Shipping fees will be as specified in the GXC quote document. 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. 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.
  1. Confidentiality.

    During the Term and for a period of three (3) years from the expiration or termination of this Agreement, each party agrees that any confidential and proprietary information, including, but not limited to, any Customer data, trade secrets, research, technology, forecasts, finances and business information, business model or business strategy disclosed by the other party during the term of this Agreement and identified in writing or orally as confidential at the time of disclosure or which the receiving party knew or reasonably should have known should be treated as confidential (“Confidential Information”) shall not, without the disclosing party’s prior written authorization, be used except in connection with the Purpose. All intellectual property rights possessed by GXC in any Confidential Information remain the property of GXC and, except for the rights granted in accordance with Section 2.1, nothing in this Agreement shall be deemed to transfer such ownership to Customer or any third party. Each party shall (a) protect the confidentiality of the other party’s Confidential Information using at least the same measures it takes to protect its own confidential information of like kind, but in no event less than reasonable care and (b) restrict access to the other party’s Confidential Information to its personnel who have a need to know basis and who are subject to terms of confidentiality at least as restrictive as set forth in this Section 5. Confidential Information shall not, however, include any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure by disclosing party; (ii) becomes publicly known and made generally available after disclosure by disclosing party to receiving party through no action or inaction of receiving party; (iii) is already in the possession of receiving party at the time of disclosure by disclosing party as shown by receiving party’s files, documents, records and other competent evidence immediately prior to the time of disclosure; (iv) is obtained by receiving party from a third party without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by receiving party without use of or reference to disclosing party’s Confidential Information, as shown by receiving party’s files, documents, records and other competent evidence. Each party shall be liable for any breach of this Section 5 by its personnel. In addition, the 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 (i) the receiving party provides the disclosing party with prior written notice of such obligation and the opportunity to oppose such disclosure or obtain a protective order; (ii) the receiving party only discloses such Confidential Information as is required to comply with such order or law (as advised by competent counsel) and (iii) no such disclosure shall otherwise exempt such Confidential Information from being treated as confidential under this Agreement.
  1. Term and Termination.

    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. If this is a no fee agreement, this Agreement will expire at the end of the Use Period.

    2. Termination for Cause.
      (a) A party may terminate 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, 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.

    3. 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; and (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.

    4. Survival. Sections 1, 2, 4, 5, 7, 8, 9, and 11, and this Section 6.4 shall survive the expiration or termination of this Agreement for any reason.
  1. Warranty Disclaimer. THE ONYX SYSTEM, INCLUDING ALL OF THE RELATED COMPONENTS, ARE PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND. GXC DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS RELATING TO THE ONYX SYSTEM, INCLUDING ALL OF THE RELATED COMPONENTS, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. GXC DOES NOT WARRANT THAT THE ONYX SYSTEM INCLUDING ALL OF THE RELATED COMPONENTS WILL MEET CUSTOMER’S’S REQUIREMENTS OR THAT THE ONYX SYSTEM INCLUDING ALL OF THE RELATED COMPONENTS WILL OPERATE UNINTERRUPTED OR ERROR FREE AND CUSTOMER FURTHER ACKNOWLEDGES THAT THE ONYX SYSTEM INCLUDING ALL OF THE RELATED COMPONENTS MAY HAVE DEFECTS OR DEFICIENCIES WHICH MAY NOT BE CORRECTED BY GXC.
  1. Limitation of Liability. EXCEPT FOR A BREACH OF SECTION 2.1, 2.2, 2.3 OR 5, IN NO EVENT SHALL EITHER PARTY, NOR ANY OF ITS AGENTS OR SUPPLIERS, BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL AND/OR CONSEQUENTIAL DAMAGES, INCLUDING, PUNITIVE OR MULTIPLE DAMAGES, OR ANY FAILURE TO REALIZE EXPECTED SAVINGS, LOSS OF DATA, EQUIPMENT DOWNTIME, LOSS OF USE, LOSS OF GOODWILL OR LOSS OF REVENUE OR PROFIT SUFFERED BY SUCH OTHER PARTY FOR ANY REASON RELATING TO THIS AGREEMENT, THE ONYX SYSTEM OR ANY OTHER COMPONENT OF THE ONYX SYSTEM, INCLUDING ANY CLAIM AGAINST SUCH OTHER PARTY BY ANY THIRD PARTY FOR DAMAGES OF ANY KIND WHICH ARISE FROM OR IN CONNECTION WITH THE DELIVERY, USE, OR PERFORMANCE OF THE ONYX SYSTEM, EVEN IF SUCH OTHER PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH CLAIMS OR DAMAGES OR KNEW OR OUGHT TO HAVE KNOWN OF SUCH CLAIMS OR DAMAGES. THE FOREGOING LIMITATIONS OF LIABILITY APPLY REGARDLESS OF WHETHER THE ACTION AROSE IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT ANY SUCH CLAIMS AROSE FROM A FUNDAMENTAL BREACH, OR BREACH OF A CONDITION OR A FUNDAMENTAL TERM OR WARRANTY. EXCEPT FOR GXC’S BREACH OF SECTION 5, IN NO EVENT SHALL GXC’S AND ITS THIRD-PARTY LICENSORS’ LIABILITY ARISING OUT OF THIS AGREEMENT, THE ONYX SYSTEM, AND ANY OTHER COMPONENT OF THE ONYX SYSTEM, EXCEED $1000 USD. The essential purpose of this provision is to limit the potential liability of GXC arising out of this Agreement or the evaluation whether for breach of contract, negligence, or otherwise. These limitations shall apply notwithstanding any failure of essential purpose of any limited remedy.
  1. Governing law, Dispute Resolution. Governing law, Dispute Resolution. This Agreement will be governed by the laws of Texas, without regard to any conflict of law principles. Each party agrees that the exclusive venue for an action or dispute arising under or in connection with this Agreement shall be the Federal or state courts in Travis County, Texas. The parties hereby agree that any such court shall be a proper forum for the determination of any dispute arising hereunder and waive any defenses based upon inconvenient forum or jurisdiction. 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 parties expressly and irrevocably disclaim and waive the application of the United Nations Convention on Contracts for the International Sale of Good and the Uniform Computer Information Transactions Act. The prevailing party in any lawsuit or other action in connection with this Agreement, the ONYX System or the Purpose shall be entitled, in addition to any other relief that may be granted, to be awarded costs, including its reasonable attorneys’ fees and other costs related to such lawsuit or action, including court costs.
  1. 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 Agreement may be incorporated, Customer may provide to Government end user or, if this Agreement is direct, Government end user will acquire the right to access and use ONYX System and documentation with only those rights set forth in this 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 set forth in this Agreement.
  1. General Terms..

    If Customer has purchased the ONYX System through a GXC authorized VAR, then the terms of this Section 4 shall not apply.
    1. Assignment. Customer may not assign this Agreement without the prior written consent of GXC.

    2. 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.

    3. 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.

    4. Entire Agreement. This Agreement constitutes the entire agreement of the parties relating to the subject matter hereof. It supersedes all prior or contemporaneous, oral or written communications, proposals, conditions, representations and warranties and prevails over any conflicting or additional terms of any quote, purchase order, acknowledgement, or other communication between the parties relating to its subject matter during the term of this Agreement.

    5. Equitable Remedies. Each party acknowledges that if the other party were to breach the terms of Sections 2.1, 2.2 2.3 or 5, 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.

    6. 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 by each party, or to such other address or person as a party may from time to time designate in writing to the other party in accordance with this Section 11.6.

    7. 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.

END