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Title Page

LICENSE and Access AGREEMENT FOR END USERS

This License And Access Agreement for End Users is between the individual or entity listed as the 'Company' on Registration Page ("End User"), on behalf of which the terms and conditions contained herein are accepted, and Decentrix, Inc. ("Decentrix").

In consideration of the mutual agreements set forth herein, Decentrix and End User hereby agree as follows.

1. DEFINITIONS

Each term defined in the body of this Agreement will have the meaning attributed to it. In addition, each term defined in this section will have the meaning set forth below.

1.1. Agreement refers to this License and Access Agreement for End Users, together with any Amendment(s) hereto.

1.2. Amendment(s) refers to any addition to, revision of or other variation of this Agreement that, subsequent to Effective Date, is made available to End User via the Internet (by way of example and not limitation, Host will conspicuously "post" Amendment(s) on its web site). To the extent an Amendment(s) is inconsistent with this Agreement; such Amendment(s) supersedes this Agreement. Amendment(s) may establish a contractual relationship between End User and a third party. End User is responsible for keeping itself apprised of, and for meeting all its duties and obligations under, all Amendment(s). However, in the event Amendment(s) significantly modifies the core business terms of this Agreement, notwithstanding anything to the contrary in this Agreement, End User may terminate this Agreement upon written notice to Decentrix not less than sixty (60) days following the availability of such Amendment(s) to End User.

1.3. Confidential Information is any material or data disclosed and/or supplied by Decentrix to End User that Decentrix communicates is proprietary and/or confidential. By way of example and not limitation, Confidential Information may include Decentrix's business activities, data, designs, development plans, inventions, prices, processes, products, research, sales proposals, software, services, technical knowledge and/or techniques. The specific terms, but not the general nature, of this Agreement are Confidential Information; in the event End User has a Sponsor, End User acknowledges and agrees that Decentrix may provide a copy of this Agreement to Sponsor.

1.4. Content is Confidential Information and means collectively any and all information, excluding applications, executable files and other similar programming information and including information provided in digital or other non-written format, regardless of the source of such information and whenever such information is provided during Term, that is included as part of Registration Page and/or End User Web Site.

1.5. Effective Date means that date on which End User first accepts this Agreement.

1.6. End User Initiation Fees refer collectively to the initial start-up costs for which End User is responsible, including without limit initial license fees for Licensed Materials, fees for the initial Services associated with training on Licensed Materials and creation and deployment of End User Web Site and fees for an initial Technical Assistance subscription, as each is applicable.

1.7. End User Monthly Fees refer collectively to the recurring monthly license fees for Licensed Materials for which End User is responsible, and exclude charges for subsequent Services, subsequent Technical Assistance, additional disk storage space, additional bandwidth and other similar charges that Decentrix, and/or Sponsor, as appropriate, may recover fully from End User.

1.8. End User Web Site means the web site or web sites initiated through Registration Page using Licensed Materials and information provided by?Sponsor and End User. Each End User Web Site will state that it is "Powered by Decentrix" in a form and manner prescribed by Decentrix, as such may be revised by Decentrix in its sole discretion from time to time, and contain small Decentrix trademarks and/or other marks that identify Decentrix.

1.9. Enhancements means updates or revisions to Licensed Materials that Decentrix creates or has created in its sole discretion for general access and utilization by its clientele for no additional fees. End User must utilize all Enhancements as soon as possible; Decentrix is not responsible for providing Services and/or Technical Assistance on outdated versions of Licensed Materials, nor is any representation or warranty expressly granted herein with respect to Hosted Service and/or Licensed Materials applicable to outdated versions of Licensed Materials

1.10. Host refers to the party, whether it be Decentrix or Sponsor, that provides Hosted Service.

1.11. Hosted Service refers to Host's provision of the server(s), as well as the other necessary bandwidth, equipment, facilities and storage space, on which Registration Page, Licensed Materials and End User Web Site reside and are accessible via the Internet.

1.12. Internet refers to a physical network of communication tools that is not controlled, maintained or provided by Decentrix. End User acknowledges and agrees that when using the Internet, End User may encounter content distinct from Content as defined hereunder; that the availability, legality, performance, reliability and other aspects of the Internet and resources accessed through the Internet are beyond Decentrix's reasonable control and are not warranted or supported by Decentrix in any way; and that safeguards relative to copyright, trademark and other intellectual property rights and the appropriateness, integrity, legality, reliability and security of content encountered via the Internet may be entirely lacking. Therefore, End User assumes all risk and liability associated with any use of the Internet by it in connection with this Agreement.

1.13. Licensed Materials are Confidential Information and include Software licensed hereunder, including any custom code or other specialization that may be provided to End User by Decentrix and/or Host hereunder; all manuals and other associated documentation and/or marketing materials procured hereunder regardless of whether such contain trademarks or other identifying marks of Sponsor; all Content; and all Enhancements to, compilations of and derivative works from any of the foregoing. Licensed Materials are protected under applicable copyright law, including as a collective work, as well as under other applicable laws of the United States of America and other jurisdictions in which Decentrix conducts business.

1.14. Mark(s) means End User's trademark, logo and/or Uniform Resource Locator (also known as a "URL") that are licensed to Decentrix pursuant to this Agreement.

1.15. Party refers to either Decentrix or End User, as appropriate in the context, and Parties refers to both Decentrix and End User.

1.16. Registration Page means the web page powered by Decentrix used to register End User and build End User Web Site.

1.17. Services are any consulting services provided by Decentrix, and/or Sponsor to End User.

1.18. Software is Confidential Information and refers the Decentrix proprietary software applications known as "Decentrix Web Site SolutionTM" (also referred to as "DWS") and "Decentrix incToolsTM" as well as any other Decentrix proprietary software applications that may later be licensed to End User via Amendment(s). DWS is a business web site tool with pre-built Content that accelerates and simplifies the way a company conducts business via the Internet. DWS's flexibility allows for the creation and distribution of web sites populated with relevant information for most any industry or subject. DWS also allows for the creation of an online store. Decentrix incTools is a collaborative toolset that allows the deployment of private intranets or an extranet. These tools provide a comprehensive set of functions including individual email, calendar and contact management, document management and file sharing, and instant messaging.

1.19. Sponsor is an individual or entity with which End User has a business relationship and which Decentrix has designated to market Licensed Materials, subject to an agreement between Decentrix and such Sponsor, and register End User through Registration Page. End User may or may not have been recruited by Sponsor, however, in the event End User has a Sponsor, Decentrix may assign any and all of its rights, duties and obligations hereunder to Sponsor

1.20. Technical Assistance is ongoing technical support provided by Decentrix to End User during regular business hours, excluding holidays. Technical Assistance is available to all Decentrix clientele via a web-based service. In addition, Decentrix provides telephone Technical Assistance to Decentrix clientele for which Decentrix is Host; telephone technical support may be available via telephone from a Host other than Decentrix. End User will bear all costs and fees associated with Technical Assistance, including without limit costs associated with telephone calls for Technical Assistance and the then prevailing rate for telephone Technical Assistance incidents.

1.21. Term refers to the term of this Agreement, which commences on Effective Date and continues in effect for an ongoing month-to-month term for as long as End User accesses Hosted Services or otherwise utilizes Licensed Materials, or until this Agreement is terminated in accordance with its provisions, whichever occurs last.

2. LICENSE GRANTS, HOSTING AND LIMITATIONS

2.1. End User grants to Decentrix a worldwide, limited, non-exclusive, revocable, royalty-free license to use Mark(s) for the purpose of having such Mark(s) on Registration Page and/or End User Web Site, and for any other purpose for which Decentrix acquires approval from End User.

2.2. Subject to the terms and conditions of this Agreement, Decentrix grants to End User a limited, non-assignable, non-exclusive, non-transferable, revocable license to access Hosted Service via the Internet and utilize Licensed Materials, and all Enhancements thereto, for its own valid, internal business purposes during Term.

2.2.1. In order to access Hosted Service, End User will need, at a minimum, access to the Internet (broadband access is preferred), an Internet Service Provider ("ISP"), an IBM compatible personal computer, the Microsoft Windows Internet Explorer, (version 5.5 or higher and Windows 98 or higher), application and other similar requirements, as well as revisions to previous requirements, as may be made known to End User by Decentrix, and/or Sponsor from time to time. Further information about the requirements for accessing Hosted Service are available from Decentrix upon request. End User acknowledges and agrees that it bears the sole responsibility for fulfilling the requirements, including any costs associated therewith, and that it may be required to enter into separate agreements with third parties in order to fulfill the requirements.

2.2.2. Host may make changes in its server(s), systems and applications software, programming languages, data communications, server(s) location, remote access equipment and other similar equipment necessary for hosting.

2.2.3. End User may access Hosted Service twenty-four (24) hours a day, seven days (7) a week, three hundred sixty-five (365) days a year, subject to the limitations of the Internet, bandwidth, storage, ISPs, access to the Internet, personal computer(s), regular maintenance program, repairs due to system failure and other such reasonable considerations.

2.2.4. Host will use its commercially reasonable efforts to keep Hosted Service available. However, Host may deny access to Hosted Service for the purpose of performing preventative and routine maintenance, installing additional equipment, installing updated operating systems, performing backup and recovery procedures and other such reasons that Host deems necessary or prudent.

2.2.5. Access via data communication linkup is controlled for all users in the same manner as for End User. As part of its security measures, Host will assign account code(s) and password(s) to End User which will enable End User to access Hosted Service. End User agrees to maintain the security of its account code(s) and password(s), and agrees that it is liable for all access to Hosted Service and utilization of Licensed Materials incurred under such.

2.2.6. Host reserves the right to make changes in End User's account code(s) and password(s), as well as the hours and rules of access to Hosted Service.

2.2.7. End User is responsible for any printing requirements it may have on its own printing resources.

2.2.8. Decentrix can, in its sole discretion, cancel, suspend or modify the account of End User. By way of example not limitation, End User acknowledges and agrees that Decentrix may deny End User and any other Internet users access to End User Web Site in the event End User is in material breach of this Agreement, including End User's material non-payment of fees, or upon termination for any reason of this Agreement. In the event of such denial of access, End User acknowledges and agrees that it will bear any costs associated with denial of access to, or reactivation of, End User Web Site, and that Decentrix will have no liability whatsoever for any outcomes caused by denial of access to, or reactivation of, End User Web Site.

2.2.9. End User may modify certain Content to the extent necessary or desirable to accurately communicate End User's message(s) on Registration Page and End User Web site. Decentrix, and/or Sponsor may review End User's modifications to certain Content to ensure such modifications meet with its own reasonable requirements and standards; in the event such modifications do not meet with its own reasonable requirements and standards, End User agrees to make further modifications as may be reasonably requested by Decentrix, and/or Sponsor from time to time.

2.2.10. Except as expressly permitted by this Agreement, End User will not decompile, disassemble, modify, translate or otherwise attempt to alter or create derivative works from Licensed Materials, nor will End User authorize or cause any third party to do the same. End User will not remove any Decentrix trademarks or any other Decentrix proprietary marking or notice placed upon or contained within Licensed Materials.

2.2.11. End User will not use Licensed Materials or End User Web Site to post, promote, provide or sell: (a) pornographic materials of any kind; (b) defamatory, indecent, infringing, libelous, obscene, profane, unlawful or otherwise inappropriate materials of any kind, including without limit expressions of bigotry, excessive profanity, hatred, prejudice and racism and content that is filthy, harassing, lascivious, lewd, scandalous, threatening, excessively violent and otherwise objectionable; (c) products and services that are unlawful in the location such content is posted or received; (d) materials that exploit minors in any way; (e) materials that infringe or violate in any way any copyright, patent, trademark, trade secret or any other intellectual property right of any third party; (f) chain letters, gambling, junk mail, unsanctioned lotteries, pyramid schemes, surveys and other such "spam" of any type; (g) materials of any kind that hold Decentrix, and/or Sponsor up to public scorn or ridicule; (h) materials of any kind that contain personally identifying or private information about any third party without its consent; (i) materials of any kind that may reasonably be interpreted to incite violence against or overthrow of any government agency, institution, personnel and the like; (j) materials of any kind with falsified or deleted authorship and/or missing or illegally modified proprietary designations or other similar notices; (k) materials of any kind based on or otherwise containing false advertising; and (l) materials of any kind which may reasonably be interpreted to incite illegal or infringing activity of any type.

2.3. End User grants to Decentrix a worldwide, limited, perpetual and royalty-free license to create derivative works from, distribute, publicly display and perform, reproduce, sublicense, transmit and otherwise use Content provided by or on behalf of End User and other materials included on End User Web Site, including without limitation ideas contained therein, by any means possible and via all media now known or hereafter developed, and for any other purpose for which End User gives its approval. In addition, End User grants Decentrix the right to use its names in connection with End User Web Site as well as in connection with Decentrix's advertising, marketing and promotional materials. End User has no recourse against Decentrix for any alleged or actual infringement or misappropriation of Content provided by or on behalf of End User or other materials included on End User Web Site, including without limitation ideas contained therein. End User is responsible for obtaining all licenses necessary, including payment of any associated fees and expenses, for Host to distribute, publicly display and perform, reproduce, transmit and otherwise use third party images and materials on End User Web Site pursuant to this Agreement.

 

3. FEES, EXPENSES AND PAYMENT TERMS

3.1. End User will pay the then current End User Initiation Fees and End User Monthly Fees for the license granted hereunder. In addition, End User will pay the then current rate for any additional Services, any Technical Assistance and any other Software, bandwidth, storage and other similar product or service provided hereunder, as well as any other fees that End User may mutually agreed upon with Decentrix, and/or Sponsor.

3.2. End User will pay for all reasonable expenses associated with Decentrix's visitation to End User's offices and other consultation with End User. These expenses include without limit reasonable travel and living expenses such as airfare, ground transportation, hotel, meals and telephone charges, and other reasonable expenses such as cost of materials and cost of shipping and handling. End User will be solely responsible for all expenses incurred by it when visiting Decentrix's offices or otherwise consulting with Decentrix.

3.3. The amounts payable by End User under this Agreement do not include applicable taxes, if any and however designated, that may be levied on End User. Except for U.S. and Colorado taxes on the income of Decentrix, End User will be responsible for all federal, state and local taxes, levies, duties and assessments, and any penalties and interest thereon, ("Taxes") pertaining to End User's license to access Hosted Service and utilize Licensed Materials, or otherwise related to this Agreement, regardless of whether Taxes are levied upon Decentrix or End User. In the event Taxes, if any and however designated, are levied on Decentrix, and/or Sponsor as result of invoicing End User, then End User will reimburse the invoicing party for the amount of such Taxes.

3.4. Decentrix, and/or Sponsor may invoice End User for any End User Initiation Fees, End User Monthly Fees and any other fees, expenses, taxes and other amounts due hereunder, and End User will remit payment directly to the invoicing Party. All charges billed to End User are due thirty (30) days from the date of the invoice. An invoice delivered by facsimile machine or other electronic means will have the same effect as an original. All balances past due will be subject to an eighteen (18) percent annual finance charge, and Decentrix may deactivate End User Web Site until such past due payments are received. End User's payment obligations under this Agreement are not abated, affected or suspended due to any lack of access, in whole or part, to Licensed Materials, regardless of the cause of such lack of access.

3.5. End User may, upon agreement by the invoicing party, remit payment via electronic funds transfer ("EFT").

 

4. ACCEPTANCE AND TERMINATION

4.1. End User will review End User Web Site and indicate whether End User accepts End User Web Site prior to the publication of End User Web Site via the Internet; such acceptance will be indicated in a form and manner prescribed by Decentrix. Publication of End User Web Site is prima facie evidence of End User's acceptance of End User Web Site and Services associated therewith. End User is solely responsible for Content on End User Web Site, regardless of the original source of Content, once End User accepts End User Web Site pursuant to this section.

4.2. This Agreement may only be terminated as follows.

4.2.1. Either Party may terminate this Agreement for any reason at any time by providing written notice to the other Party not less than thirty (30) days prior to the requested termination date.

4.2.2. Either Party may terminate this Agreement for cause at any time by providing written notice to the other Party if the other Party is in material breach of any term, condition or covenant of this Agreement and fails to cure such breach within sixty (60) days after receiving written notice of such breach.

4.2.3. Either Party may terminate this Agreement at any time by providing written notice to the other Party not less than sixty (60) days prior to the requested termination date if the other Party becomes insolvent; suspends payment of its debts; admits in writing to its insolvency or inability to pay debts or perform obligations as they mature; makes an assignment for the benefit of creditors; or is adjudged bankrupt or insolvent by a court of competent jurisdiction.

4.3. Notwithstanding anything herein to the contrary, the following will occur upon termination of this Agreement for any reason.

4.3.1. End User will promptly make all payments that are due and owing to Decentrix, and/or Sponsor prior to the termination date.

4.3.2. Host will deactivate End User Web Site and deactivate any link(s) between and among End User Web Site and another web site, unless the Parties mutually agree that the foregoing will occur on an earlier date. Decentrix may rebrand End User Web Site with marks of its choosing.

4.3.3. End User will not publish in any manner, or otherwise use in any manner, any Content, unless the Parties mutually agree that the foregoing will occur on an earlier date.

4.3.4. All terms which by their nature are intended to survive termination of this Agreement will so survive, including without limit the following sections: 2.3, 3, 4.3, 5, 6, 7.2, 7.3, 8, 9, 10.3, 10.5 and 10.11.

 

5. REPRESENTATIONS AND WARRANTIES

5.1. Each Party represents and warrants to the other Party that:

5.1.1. it is an entity duly organized and validly existing under the laws of the place of its organization;

5.1.2. it has the power to enter into and perform its obligations under this Agreement; and

5.1.3. by entering into and performing its obligations under this Agreement, it will not be in breach of any obligation it owes to any third party in any other fully executed written agreement.

5.2. End User further represents and warrants that:

5.2.1. Mark(s) do not infringe or misappropriate a published trademark or any other intellectual property right of any third party;

5.2.2. since copyrighted or otherwise protected material cannot be uploaded to or otherwise placed on End User Web Site without permission of the owner(s) or other individual(s) or entity(ies) empowered to grant such permission, it possesses all necessary rights and authority for distribution, public display and performance, reproduction, transmission and other use via the Internet of any Content it provides that is owned by any third party or in which any third party has any rights; and

5.2.3. it will not provide or otherwise have published on End User Web Site any Content that is unsuitable for any reason, including by way of example and not limitation, images or materials that adversely affect the availability of Licensed Materials; images or materials that contain any virus, worm or other harmful component or corrupted data; and images or materials that are defamatory, harassing, harmful, obscene, threatening, unlawful or racially, ethically or otherwise objectionable, such as web sites that facilitate or promote discrimination (whether based on age, disability, gender, nationality, race, religion or sexual orientation), distribution of sexually explicit images, illegal activity (including infringement of any intellectual property rights), overthrow of any government and violence.

 

6. OWNERSHIP and CONFIDENTIALITY

6.1. The Parties acknowledge and agree that Decentrix is the owner of all interests, rights and title in Confidential Information (except for Content licensed to Decentrix by a third party), and that Confidential Information contains valuable proprietary rights (including trade secrets) of Decentrix that Decentrix also owns. Content is not a work-for-hire, nor will any Services rendered hereunder create a work-for-hire; End User expressly assigns to Decentrix all interests, rights and title that it possess in Content it provides hereunder and agrees to take any further action that may be required of it to commemorate and/or finalize such assignment. Except as expressly enumerated herein, Decentrix does not grant to End User any license to Confidential Information under any trade secret, copyright or other intellectual property right.

6.2. End User will not disclose Confidential Information, or cause Confidential Information to be disclosed, to any third party, except with the prior written consent of Decentrix.

6.3. End User may use Confidential Information only for the stated purposes set forth in this Agreement.

6.4. End User will restrict access to Confidential Information to only those of its personnel, including its officers, directors and employees, with a need to know, except that End User may disclose Confidential Information to its professional advisors and independent auditors with a need to know provided that (a) such advisors and auditors are advised of the terms of this Agreement and are obligated to protect Confidential Information pursuant to an agreement containing terms, or according to professional ethical standards, that are no less strict than the terms of this Agreement and (b) End User remains liable to Decentrix for the acts and omissions of such advisors and auditors as if they were actual employees of End User.

6.5. Upon request by Decentrix, End User will promptly destroy or return any Confidential Information made available to it, including copies thereof.

6.6. Confidential Information will not include information, including without limit ideas, concepts, know-how, techniques and methodologies, that is independently developed by End User, that is acquired by End User from a third party which is not under an obligation not to disclose such information or that is or becomes publicly available through no breach of a confidentiality obligation.

6.7. In the event End User receives a subpoena or other validly issued administrative or judicial process requesting Confidential Information, or is otherwise required by applicable law to disclose Confidential Information, End User will notify Decentrix of such receipt in order to allow Decentrix an opportunity to prevent disclosure of Confidential Information and End User will thereafter be entitled to comply with such subpoena or other process to the extent required by law.

6.8. All Confidential Information is provided "AS IS" without warranty of any kind.

 

7. INDEMNIFICATION

7.1. In the event of a third party claim against End User that Software infringes a presently existing United States patent, a copyright or a registered trademark, Decentrix will defend such claim at its expense and pay any damages awarded against End User. If Software is, or in Decentrix's opinion is likely to be, held to constitute an infringing product, Decentrix will at its expense and option either (a) procure the right for End User to continue using Software pursuant to this Agreement, (b) modify Software to make it noninfringing, (c) replace Software with a noninfringing equivalent or (d) direct the return of Software to Decentrix and refund to End User the fees paid for Software, if any, during the immediately preceding twelve (12) month period less a reasonable amount for End User's utilization of Software up to the time of return. Decentrix will not indemnify End User, however, if the claim of infringement is caused by (i) End User's or Sponsor's misuse or modification of Software; (ii) End User's or Sponsor's failure to use corrections or Enhancements made available by Decentrix (iii) End User's or Sponsor's utilization of Software in combination with any product or information not owned or developed by Decentrix; or (iv) information, direction, specification or materials provided by End User or any third party. The foregoing remedies constitute End User's sole and exclusive remedies, and Decentrix's entire liability, with respect to infringement.

7.2. End User will indemnify and hold harmless Decentrix, its employees and agents from and against any claim, demand, loss, damage or expense, including reasonable attorney fees, relating to End User's violation of this Agreement and/or any third party dispute about the ownership of or infringement by Mark(s) or Content provided by End User; any permitted use of Mark(s) or Content provided by End User; any third party rights, including without limit, false advertising, infringement and invasion of privacy; and any breach of this Agreement by End User or any user of End User's account.

7.3. To receive the foregoing indemnities, the Party seeking indemnification must notify the other Party in writing of a claim or suit promptly and provide it with reasonable cooperation, at the indemnifying Party's expense, and full authority to defend or settle the claim or suit. Neither Party will have any obligation to indemnify the other for any settlement made without its written consent.

 

8. DISCLAIMER OF WARRANTIES

EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, DECENTRIX HEREBY EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE RELATING TO THIS AGREEMENT, INCLUDING BY WAY OF EXAMPLE AND NOT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Decentrix does not make any representations or warranties that access to Hosted Service will be uninterrupted or error-free, or as to the results to be obtained from access to Hosted Service and utilization of Licensed Materials; End User's access to Hosted Service is provided on an "AS IS" and "AS AVAILABLE" basis. Decentrix is not responsible for, nor does it guarantee, the accuracy, completeness and/or timeliness of Content contained on or within End User Web Site; there may be delays, inaccuracies and/or omissions in Content contained on or within End User Web Site.

 

9. LIMITATION OF LIABILITY

In no event will Decentrix be liable to any party for any direct, consequential, incidental, punitive or special damages whatsoever, including business interruption and loss of or injury to data, opportunities, profits, reputation or revenues, whether arising in contract, tort or otherwise related in any manner to this Agreement, even if Decentrix has been advised of the possibility of such damages. In no event will Decentrix be liable for any damage to any computer, modem, software, telephone or other property resulting from End User's access to Hosted Service and utilization of Licensed Materials. In no event will Decentrix be liable in any way whatsoever for the inability to access Hosted Service due to failure of the Internet, failure of an Internet Service Provider ("ISP"), the form and/or the equipment associated with access to the Internet (including without limit electronic and mechanical equipment and telephone and other interconnect methods and problems associated therewith), personal computer(s) (including without limit configurations and incompatibility and issues associated therewith), unauthorized access and utilization, operator errors, theft and force majeure-type events, bugs and errors, regular maintenance program, repairs due to system failure and other such reasonable causes of such lack of access. The limitations set forth here will apply even if remedies such as error correction, reperformance of Services and refund of fees completely fail of their essential purpose.

 

10. GENERAL TERMS

10.1. Assignment. End User may not assign this Agreement without the prior written consent of Decentrix, and such consent will not be unreasonably delayed or withheld.

10.2. Notice. A notice sent by one Party to the other Party must be in writing and sent to the address listed on Registration Page. Notice will be deemed given upon personal delivery, receipt of a facsimile confirmation or receipt of a traceable delivery (which includes by way of example and not limitation certified mail, return receipt requested and overnight delivery). Either Party may change its address listed in this Agreement according to this section.

10.3. Relationship Among Parties. Decentrix, Sponsor and End User will not be deemed to be agents or partners of one another, and neither Decentrix,? Sponsor nor End User will have any right or authority to assume or create any obligation or responsibility, whether express or implied, on behalf of one another, by virtue of this Agreement. As to each other, the Parties are independent contractors, and no third party rights are expressly or impliedly granted or intended to be granted by this Agreement.

10.4. Further Assurances. Each Party must promptly, and at its own cost, do all things (including executing any documents) necessary or desirable to give full effect to this Agreement. By way of example not limitation, End User will promptly make any assignments necessary to ensure the Parties' intentions come to fruition.

10.5. Entire Agreement. This Agreement is the entire agreement and understanding between the Parties on everything connected with the subject matter of this Agreement and, therefore, supersedes any prior agreement or understanding on anything connected with such subject matter. This Agreement constitutes a legal, valid and binding contract between the Parties and is enforceable in accordance with it terms. This Agreement governs any and all access to Hosted Service and utilization of Licensed Materials by End User; End User's access to and utilization of Licensed Materials is prima facie evidence of End User's acceptance of this Agreement, and End User's continued access to Hosted Service and utilization of Licensed Materials subsequent to the availability of an Amendment(s) over the Internet is prima facie evidence of End User's acceptance of such Amendment(s). Neither course of conduct between the Parties nor usage and trade practices will be binding on the Parties or act to modify this Agreement.

10.6. Headings. The headings used herein are for convenience only and are in no way intended to describe, interpret, define or limit the scope, extent or intent of this Agreement or any section hereof.

10.7. Enforceability. In the event any provision of this Agreement, or the application thereof, becomes or is declared by a court of competent jurisdiction to be illegal, void or unenforceable, the remainder of this Agreement will continue in full force and effect and such provision will be automatically revised and construed so as to be valid, operative and enforceable to the maximum extent permitted by law or equity while preserving the Parties' original intent to the highest degree possible.

10.8. Force Majeure. Neither Party will be liable for any delays or failures in performance due to circumstances beyond its control, including without limitation, acts of God, acts or omissions of carriers, governmental regulations or actions imposed after the fact, storms, fire, communication line failures, power and equipment failures, earthquakes or other disasters or events.

10.9. Waiver. A Party's failure or delay to exercise a power or right does not operate as a waiver of that power or right. A waiver is not effective unless it is in writing, and then it is effective only in respect of the specific instance to which it relates and for the specific purpose for which it is given.

10.10. Choice of Law and Jurisdiction; Attorney Fees. The laws of the State of Colorado, without reference to its conflict of laws provisions, govern this Agreement. The Parties hereby submit to the exclusive jurisdiction of the state courts of Colorado or the Federal District courts for the District of Colorado, and to venue in Denver, Colorado. The choice of laws and jurisdiction herein will not prevent either Party from seeking equitable relief in any forum of competent jurisdiction. The Uniform Computer Information Transactions Act, however designated, will not apply to this Agreement. This Agreement is not an agreement for the sale of goods. In the event of a breach of this Agreement, or a violation of a Party's intellectual property rights or other cognizable equitable claim for which a Party seeks injunctive or other equitable relief, both Parties expressly waive any requirement that the Party requesting such relief post a bond as a condition for securing such relief. If either Party employs attorneys to enforce any rights arising out of or relating to this Agreement, the prevailing Party will be entitled to recover reasonable costs and attorney fees.

In witness whereof, End User accepts this Agreement as of the Effective Date.