This End-User License Agreement (“EULA” or “Agreement”) is the legal agreement made by and between your entity (as the registered representative and on behalf of a single entity) (“You” or “Your”) and Plixer, LLC, together with any parent, subsidiary, affiliate or division, (“Plixer”) for any software, or service(s), which may include, without limitation, media, printed materials, accompanying services, content package(s), cloud-based software and/or cloud-based or electronic documentation (together the “Plixer Product”). By installing, copying, downloading, accessing or otherwise using the Plixer Product, You agree to be bound by the terms of this EULA and any applicable order for Plixer Product (each an “Order”). If You do not agree to the terms of this EULA, do not install, open, access or use the Plixer Product and immediately return the Plixer Product in its original form to Plixer. This EULA supplements the General Terms and Conditions (“General Terms”), that may be made available to You if You executed an order for Plixer Product (“Order”) issued by Plixer, and such General Terms are hereby incorporated by reference herein.
1. Plixer Product Ownership and Use
1.1 Title and Ownership. This Agreement is a license agreement and not a sale. Title, ownership rights and intellectual property rights in and to the Plixer Product (including without limitation any trademarks, service marks, copyrights, images, logos, names, animations, video, audio, music, and text incorporated into the Plixer Product), any accompanying materials, any copies of the Plixer Product, and any copies You are permitted to make are owned by Plixer or its suppliers and affiliates and are protected by copyright laws and international copyright treaties, as well as other intellectual property laws, treaties, federal, and state trade secret laws.
1.2 Right to Use. Your rights to use the Plixer Product are specified in this EULA and Plixer retains all rights not expressly granted to You in this EULA. Nothing in this EULA constitutes a waiver of Plixer’s rights under U.S. or international copyright law or any other federal or state law. You agree to treat the Plixer Product like any other copyrighted material for archival purposes, and You may not copy the materials (printed, cloud-based or otherwise) accompanying the Plixer Product without the express written permission of Plixer.
1.3 Third Party Software. This Plixer Product contains open source software that is owned by third parties (“Third Party Software”) and does not fall under the guidelines of this EULA, but rather is licensed under the terms that accompanies such Third Party Software. All third parties and suppliers retain all right, title and interest in Third Party Software and all copies thereof, including all copyright and other intellectual property rights and nothing in this EULA limits Your rights under, or grants You rights that supersede, the terms and conditions of any applicable end user license for the Third Party Software. If You are required to make any changes or modifications to a particular Third Party Software, You immediately will make available to Plixer any changes or modifications that it makes to the Third Party Software. You may not remove, modify or alter any Plixer copyright or trademark notice from any part of the Plixer Product, including but not limited to any such notices contained in the physical or electronic media or documentation, in any of the runtime resources, or in any web presences or web-enabled notices, code, or other embodiments originally contained in or dynamically or otherwise created by the Plixer Product.
1.4 Users. The Plixer Product is intended for use by individuals who are authorized by You to use the Plixer Product (“Users”) and, with respect to on-premises and private Cloud-Based licenses referenced in Section 2, below, those who have been supplied an Activation Key, as well as any third parties for whom You have obtained Plixer’s prior written permission, the details for which are addressed in Section 22.4, below.
1.5 Appropriate Use of the Plixer Product.
a. Authorized Users. While Users may be any persons that You authorize to use the Plixer Product for its business, including, but not limited to, Your employees, agents, consultants and contractors, You may not sublicense, resell or supply the Plixer Product for use in or for the benefit of any other organization, entity, business, or enterprise without Plixer’s prior written consent.
b. Your Representations. With regard to any use by a User, You represent and warrant that: (i) You have received prior written consent from Plixer for use of the Plixer Product; (ii) You shall not, and shall procure that each User does not, use the Plixer Product for any other purpose nor for the benefit of any person other than You; (iii) in each case that such rights shall not extend to the commercial exploitation of the Plixer Product; and (iv) the relevant and approved of User has entered into a written confidentiality agreement with (1) obligations similar (and no less stringent) to the confidentiality provisions of this Agreement and (2) the absence of language that could have the effect of a non-compete on said User.
c. Objectionable Matter. You agree not to submit to Plixer for use by, with or in relation to the Plixer Product any material that is illegal, misleading, defamatory, indecent or obscene, in poor taste, threatening, infringing of any third party proprietary rights, invasive of personal privacy, or otherwise objectionable (collectively “Objectionable Matter”). You will be responsible to ensure that Users do not submit any Objectionable Matter. In addition, Plixer may, at its option, adopt rules for permitted and appropriate use and may update them from time to time on the Plixer website; You and Users will be bound by any such rules. Plixer reserves the right to remove any of Your Data (as later defined in Section 3) that constitutes Objectionable Matter or violates any Plixer rules regarding appropriate use, but is not obligated to do so. You and Your Users will comply with all applicable laws regarding Your Data, use of the Plixer Product and the Plixer Content, including laws involving private data and any applicable export controls. Plixer reserves the right to terminate this Agreement for cause in case You materially breaches the provisions of this Section 3.
d. Passwords and Access. You are responsible for all activities that occur under Your User accounts. You are responsible for maintaining the security and confidentiality of all User usernames and passwords. You agree to notify Plixer immediately of any unauthorized use of any Plixer Product username or password or account or any other known or suspected breach of security.
e. Approval and Feedback. You may not publish or share with any third party any results of benchmark tests run on the Plixer Product without first obtaining written approval from Plixer. You authorize Plixer to use any feedback or ideas You provide Plixer in connection with Your use of the Plixer Product.
2. ON-PREMISES OR PRIVATE CLOUD DEPLOYMENTS OF PLIXER PRODUCT
2.1 Installation and Retention. You may install and use the Plixer Product on an authorized network server(s), but only for use as herein permitted by Plixer at the time of first installation. Plixer’s Hardware may be provided to You with the Plixer Product and can only be used for running and extracting Data collected by Plixer Product during the License Term (later defined) of the applicable Order. In addition, You can run one copy of the object code version of the Plixer Product solely for collecting, running and extracting Data from Plixer Product and You may make copies of the Plixer Product for backup purposes only. The license term (“License Term”) for purposes of this EULA means either (a) a subscription (“Subscription”) for a fixed term, the specifics for which will be as set forth in the applicable Order; or (b) perpetual, as agreed upon by the parties and as set forth in the applicable Order, unless the Agreement is terminated, as provided for in Section 14. If the License Term is for a fixed term, the Agreement will commence on the date of first use by You of the Plixer Product (“Effective Date”) and shall continue until the earlier to occur of the expiration of the License Term or the termination of this Agreement, as provided for in Section 14. If the License Term is not for a fixed term, but is perpetual, this EULA shall commence on the Effective Date and shall continue in effect until terminated as set forth in Section 14 and the License Term of each perpetual license shall automatically renew for a subsequent period(s) of twelve (12) months (each a ‘Renewal Term”) at Plixer’s then-current pricing and then-current terms, unless either party gives the other written notice of termination at least sixty (60) days prior to expiration of the then-current License Term. In the case of additional concurrent authorized users of the Plixer Product who are authorized and added after the initial payment of Fees, the term of their usage of the Plixer Product shall be coterminous with the preexisting then-current term. If You purchase an upgrade, the term of the agreement shall be the specific term set forth in the new license key issued for the upgrade and as set forth in an amended or new Order.
2.2 Evaluation License. If You receive the Plixer Product and/or accompanying Hardware for evaluation purposes or other limited, temporary use as authorized by Plixer (“Evaluation Product”), Your use of the Evaluation Product is only permitted for the period limited by the License Key or otherwise stated by Plixer in writing (“Evaluation Period”). If no Evaluation Period is identified by the License Key or in writing, then the evaluation license is valid for fourteen (14) days from the date the Plixer Product is made available to You. You will be invoiced for the list price of the Evaluation Product if You fail to return or stop using the Plixer Product by the end of the Evaluation Period. The Evaluation Product is licensed “AS-IS” without support or warranty of any kind, expressed or implied. Plixer does not assume any liability arising from any use of the Evaluation Product. You may not publish, under an evaluation situation or otherwise, any results of benchmark tests run on the Evaluation Product without first obtaining written approval from Plixer. You authorize Plixer to use any Feedback or ideas You provide Plixer in connection with Your use of the Evaluation Product.
2.3 Description of Other Rights and Limitations. You are prohibited from (a) copying the Plixer Product onto any public network; (b) using the Plixer Product as a general database server, as a standalone application or with other applications other than Plixer Product under this license; (c) changing any proprietary rights notices which appear in the Plixer Product; or (d) modifying the Plixer Product without receipt of prior written consent from Plixer.
2.4 Adjustments to License
a. License Key. You will be issued a new license key (“License Key”) for use for the duration of the License Term upon payment in full to Plixer of the associated Fees.
b. Number of Devices. You agree to and acknowledge that, during the then-current calendar year of the License Term, You may increase the number of devices that You license under this Agreement. You shall be responsible for any increase in Fees attributable to the increase in the number of devices licensed with such Fees being prorated based upon the pricing of the then-current calendar year of the License Term.
c. Improvements/Enhancements. You will not use the Plixer Product, to include any ideas or information obtained from use of the Plixer Product, to create, improve upon or enhance, a substitute for, a competitor of, or a substantially similar product to the Plixer Product. In addition, You shall not make Your License available to anyone other than authorized Users.
d. Lab License. Plixer from time to time, may permit You to run a lab license(s) (each a “Lab License”), each of which will be identified by an individual part number and shall be obtained through a separate license. It is the understanding of the parties that each Lab License is required to operate a second copy of the Software for testing purposes. The parties will agree to the terms and conditions of any such Lab License, the details of which will be set forth in a Purchase Order (as later defined).
2.5 Upgrades. If the Plixer Product is labeled or otherwise identified by Plixer as an “upgrade,” You must be properly licensed to use a product identified by Plixer as being eligible for the upgrade in order to use the Plixer Product. A Plixer Product labeled or otherwise identified by Plixer as an upgrade replaces or supplements the Plixer Product that formed the basis for Your eligibility for such upgrade. You may use the resulting upgraded product only in accordance with the terms of this EULA. In addition, as Plixer provides periodic upgrades to the Plixer Product, Plixer reserves the right to end any support for any older releases of such Licensed Product. The Plixer Product Release Policy is available at https://www.plixer.com/support/.
3. Pre-Release Software.
3.1 Overview. Plixer occasionally makes versions of upcoming software available for review and feedback. Pre-Release Software (as later defined) is not supported for production use. It is for evaluation, testing and development purposes only. Plixer is under no obligation to further develop or publicly release any Pre-Release Software.
3.2 Definitions.
a. Pre-Release Software. “Pre-Release Software” means the pre-release version of Plixer Products as identified on the software download page, whether labeled as alpha, beta, pre-release, preview or otherwise, provided to You by Plixer under this Agreement. Pre-Release Software may include any enhancements, updates, upgrades, derivatives or bug fixes to such Plixer Products and may be accompanied by any documentation, add-ons, templates, sample data sets or Hardware devices as provided by Plixer.
b. Data. “Data” means the raw data You upload or submit to the Pre-Release Software and the processed result of the Data generated by You using the Pre-Release Software.
c. Pre-Release Feedback. “Pre-Release Feedback” means all suggestions, comments, opinions, code, input, ideas, reports, information, know-how or other feedback provided by You (whether in oral, electronic or written form) to Plixer in connection with your use of the Pre-Release Software. Pre-Release Feedback does not include Data, unless submitted or communicated by You to Plixer as part of Pre-Release Feedback.
d. Internal Purposes. “Internal Purposes” means internal business use with Your systems, networks and devices for the purposes of internal testing and evaluation of the Pre-Release Software in order to provide Pre-Release Feedback to Plixer regarding the Pre-Release Software.
3.3 Ownership. Plixer, its suppliers and/or its Plixer’s own all worldwide right, title and interest in and to the Pre-Release Software, including all worldwide patent rights; copyright rights; moral rights; trade secrets and other rights with respect to confidential or proprietary information; know-how; other rights with respect to inventions, discoveries, ideas, improvements, techniques, formulae, and other technology; and any other intellectual and industrial property rights, whether or not subject to registration or protection; and all rights under any license or other arrangement with respect to the foregoing. Except as expressly stated in this Agreement, Plixer does not grant You any intellectual property rights in the Pre-Release Software, and all right, title, and interest in and to all copies of the Pre-Release Software and any accompanying Hardware not expressly granted remain with Plixer, its suppliers and/or its Plixer’s. The Pre-Release Software is copyrighted and protected by the laws of the United States and other countries, and international treaty provisions. You acknowledge that the Pre-Release Software is licensed and not sold.
3.4 Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH ELSEWHERE IN THIS AGREEMENT, PLIXER WILL HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY BUSINESS INTERRUPTION OR LOSS OF DATA ARISING FROM THE (a) USE OF THE PRE-RELEASE SOFTWARE, (b) AUTOMATIC TERMINATION OF THE LICENSE RIGHTS GRANTED HEREIN; (c) ANY ASSOCIATED CESSATION OF THE PRE-RELEASE SOFTWARE FUNCTIONS; (d) ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME FOR ANY REASON; OR (e) ANY DELETION, CORRUPTION OR DAMAGE OF DATA ON OR THROUGH THE PRE-RELEASE SOFTWARE. LICENOR’S TOTAL CUMULATIVE LIABILITY TO YOU, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED ONE HUNDRED DOLLARS ($100.00).
3.5 Warranty Disclaimer. THE PRE-RELEASE SOFTWARE IS PROVIDED “AS IS”. PLIXER DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE LIMITED WARRANTIES SET FORTH IN SECTIONS 10.1 AND 10.2, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, QUIET ENJOYMENT AND WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE OR BY STATUTE OR IN LAW. PLIXER SPECIFICALLY DOES NOT WARRANT THAT THE PRE-RELEASE SOFTWARE WILL MEET YOUR REQUIREMENTS, THE OPERATION OR OUTPUT OF THE PRE-RELEASE SOFTWARE WILL BE ERROR-FREE, ACCURATE, RELIABLE, COMPLETE OR UNINTERRUPTED. Plixer is not obligated to support, update, or upgrade the Pre-Release Software.
3.6 Confidentiality. You agree to hold the Pre-Release Software (including all intellectual property rights therein, such as any patents, inventions, copyrights, design rights, trade secrets and know-how) and any related information (“Confidential Information”), whether in oral or written form, confidential. Confidential Information may include information relating to features, functionalities, improvements, code, pricing, business strategies, product roadmaps, development plans, marketing materials, data sets, customer lists or other proprietary third-party information. You will hold such Confidential Information in strict confidence and not use or disclose the Confidential Information, in whole or in part, except as expressly permitted in this Agreement. You may disclose Confidential Information to its employees, but only to the extent they have a need to know to test the Pre-Release Software and You have advised them that such information is Confidential. You agree to instruct any such employees in advance who will have access to the Pre-Release Software that they must comply with the restrictions set forth in this Agreement. You shall have no obligation to maintain the confidentiality of any information which: (a) is or becomes publicly available without breach of this Agreement; (b) is rightfully received by You from a third party without an obligation of confidentiality and without breach of this Agreement; (c) is developed independently by You without access to or use of the Confidential Information; or (d) has been approved for release by written authorization of the party that owns the Confidential Information. You will notify immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of this Agreement by You or Your personnel and will cooperate with Plixer in every reasonable way to help Plixer regain possession of the Confidential Information and prevent its further unauthorized use or disclosure. You acknowledge that any breach of its obligations under this Agreement with respect to the proprietary rights or Confidential Information will cause Plixer irreparable injury for which there are inadequate remedies at law, and therefore, Plixer will be entitled to equitable relief in addition to all other remedies provided by this Agreement or available at law or in equity.
3.7 Pre-Release Feedback. In addition to that which is set forth elsewhere in the Agreement, to include, but not be limited in Section 2.3 (b), Plixer, in its sole discretion, may or may not respond to Your Pre-Release Feedback or promise to address all of Your Pre-Release Feedback in the development of future features or functionalities of the Pre-Release Software or any related or subsequent versions of such Pre-Release Software. In the event Plixer uses Pre-Release Feedback, You grant Plixer an unrestricted, perpetual, worldwide, exclusive, transferable, irrevocable, sublicensable, royalty-free, fully paid-up license to use, copy, modify, create derivative works of, make, have made, distribute (through multiple tiers of distribution), publicly perform or display, import, export, sell, offer to sell, rent, or license copies of the Pre-Release Feedback as part of or in connection with any Plixer Product, or any other Plixer product, service, technology, content, material, specification or documentation. If requested by Plixer, You will provide Pre-Release Feedback to Plixer regarding testing and use of the Pre-Release Software, including error or bug reports.
3.8 Data. You hereby grant to Plixer a perpetual, irrevocable, non-exclusive, royalty-free, paid-up, worldwide, sublicensable license to use, access, transmit, host, store, and display the Data solely for the purpose of providing and improving the Pre-Release Software. Plixer may exercise such license for purposes of providing, maintaining, repairing, administering and improving the Pre-Release Software or in developing new products or services. You represent, warrant and agree that the Data and other materials You provide or make available to Plixer will include only information relevant to the Pre-Release Software and the use thereof and will not include any personally identifiable information or any protected health data. You acknowledge and agree that You are solely responsible for all Data it uploads or submits using the Pre-Release Software and for Your conduct while using the Pre-Release Software. You acknowledge and agree that: (a) You will evaluate and be aware of all risks associated with the use of any Data; (b) You are responsible for protecting and backing up the Data; (c) You are responsible for protecting the confidentiality of any Data; and (d) under no circumstances will Plixer be liable in any way for any Data, including, but not limited to, any errors or omissions in any Data, or any loss or damages or any kind incurred as a result of Your use, deletion, modification, or correction of any Data. Plixer has no responsibility to store, protect, remove or delete any Data for You and shall have no liability for the deletion of or failure to store any Data.
3.9 Miscellaneous. Upon receipt of a later unreleased version of the Pre-Release Software or release by Plixer of a publicly released commercial version of the Pre-Release Software, You must return, destroy or delete permanently all earlier Pre-Release Software received from Plixer.
4. Plixer’s Ownership. Plixer and its suppliers retain all rights in and to the Plixer Product and Plixer Content. This Agreement grants no ownership rights in the Plixer Product to You. No license is granted to You except as to use of the Plixer Product as expressly stated herein. The Plixer name, the Plixer logo, and the product names associated with the Plixer Product are trademarks of Plixer or third parties, and they may not be used without Plixer’s prior written consent.
5. Restrictions on Use of the Plixer Product. You may not alter, resell or sublicense the Plixer Product or provide it as a service bureau. You agree not to reverse engineer the Plixer Product or other technology. You will not use or access the Plixer Product to: (a) build a competitive product or service, (b) make or have made a product using similar ideas, features, functions or graphics of the Plixer Product, (c) make derivative works based upon the Plixer Product or the Plixer Content or (d) copy any features, functions or graphics of the Plixer Product or the Plixer Content. You will not “frame” or “mirror” the Plixer Product. Use, resale or exploitation of the Plixer Product and/or the Plixer Content except as expressly permitted in this EULA is prohibited.
6. Feedback. You agree that any feedback or ideas You provide to Plixer regarding any Plixer Product, or any suggested improvements thereto (together, the “Feedback”), will be the exclusive property of Plixer. To the extent You own any rights in the Feedback, You agree to assign and hereby does assign to Plixer all right, title and interest in and to the Feedback. You agree to perform all acts reasonably requested by Plixer to perfect and enforce such rights. In addition, You agree that You will not publish nor utilize in any way any Feedback provided by You to Plixer without first obtaining written approval from Plixer and You authorize Plixer to use any Feedback or ideas You provide Plixer in connection with Your use of the Plixer Product.
7. Warranty Regarding the Plixer Product. Licensor warrants that the Plixer Product will perform as described in the applicable online user documentation available via Licensor’s website and in accordance with Section 14 herein. In the event of a conflict between the online user documentation and this EULA, the terms of this EULA will govern.
8. Service Level. Plixer agrees that, during the License Term, the Plixer Product will meet certain applicable service level(s), the details of which can be found at (the “SLA”). If Plixer does not achieve such service level, Plixer will provide You upon request with a credit, as described in the SLA, as Your sole and exclusive remedy. To claim a remedy under this Section, You are required to notify Plixer in writing within 15 days of the occurrence of the failure to provide the applicable service level.
9. Indemnification. The Plixer Product is intended for use as specified in this EULA and in accordance with the documentation accompanying the Plixer Product. It is Your responsibility to ascertain whether any additional copyright, patent or other licenses are necessary and to obtain any such licenses. You agree to hold harmless, indemnify, and defend Plixer, its officers, directors, affiliates and employees, from and against any losses, damages, fines, and expenses (including reasonable attorneys’ fees and costs) arising out of or relating to any claims that You have encoded, compressed, copied, or transmitted any materials (other than the materials provided by Plixer) in connection with the Plixer Product in violation of another party’s rights or in violation of any law. If You are importing the Plixer Product from the United States, You shall indemnify and hold Plixer harmless from and against any import and export duties or other claims arising from such importation.
10. Limited Warranty.
10.1 Plixer Product/Software. Under this limited warranty for Plixer Product (“Plixer Product Limited Warranty”), Plixer warrants the Plixer Product for a period of one (1) year from Your date of purchase based upon its originally installed version, that (a) the Plixer Product will perform substantially in accordance with Plixer’s documentation accompanying it, and (b) Plixer support engineers will make commercially reasonable efforts to solve any problem issues with the Plixer Product. Any Support Services provided by Plixer shall be substantially as described in applicable written materials provided with the Plixer Product. To the extent that implied warranties on the Plixer Product are disclaimable, they are disclaimed herein. Some states and jurisdictions do not allow disclaimers of or limitations on the duration of an implied warranty, so the above Plixer Product Limited Warranty may not apply to You. During the limited warranty period, if Plixer and its suppliers’ entire liability and Your exclusive remedy shall be, at Plixer’s sole option, either (a) return by You of an amount equal to the lesser of the price paid for the (a) Plixer Product during the preceding twelve (12) months; or (b) the applicable Order, if any, or (b) repair or replacement of the component(s) of the Plixer Product that do(es) not meet Plixer’s Plixer Product Limited Warranty. This Plixer Product Limited Warranty is void if failure of the Plixer Product has resulted from accident, abuse, or misapplication. Any replacement of the Plixer Product will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer. Outside of the United States, neither of these remedies nor any product Support Services offered by Plixer are available without first contacting Plixer or Plixer’s distributor serving Your country.
10.2 Support Services. Plixer may provide You with support services related to the Plixer Product (“Support Services”). Any supplemental software code provided to or accessed by You as part of the Support Services shall be considered part of the Plixer Product and subject to the terms and conditions of this EULA. With respect to technical information You provide to Plixer as part of the Support Services, Plixer reserves the right to use such information for its business purposes, including for product updates and development. Plixer will use its best efforts to not use such technical information in a form that personally identifies You.
11. Privacy and Collection of Personal or System Information
11.1 System Information. The Plixer Product, Support Services and/or Subscription may employ applications and tools to collect personally identifiable, sensitive or other information about You and Users (e.g., including, without limitation, You and Users’ name, address, e-mail address and payment details), their computers, files stored on their computers, or their computers’ interactions with other computers (e.g., including, without limitation, information regarding network, licenses used, hardware type, model, hard disk size, CPU type, disk type, RAM size, operating system types, versions, locale, total scanners deployed, database size, system telemetry, device ID, IP address, location, content, Plixer products installed, Plixer components, processes and services information, frequency and details of update of Plixer components, information about third party products installed, extracts of logs created by Plixer, products and specific features, etc.) (collectively, “Collected Data”). The collection of this Collected Data may be necessary to provide You and Users with the relevant Plixer Product, Support Services or Subscription functionalities as ordered (e.g., including, without limitation, detecting and reporting Your threats and vulnerabilities), to enable Plixer to improve its Plixer Product, Support or Subscription (e.g., including, without limitation, content synchronization, device tracking, troubleshooting, etc.), and to further or improve overall security for you and Users. You may be required to uninstall the Plixer Product or disable Support Services or its service subscription to stop further Collected Data collection that supports these functions.
11.2 Privacy Policy. By entering into this EULA, or using the Plixer Product, Support Services or Subscription, You and Users agree to Plixer’s Privacy Policy (“Privacy Policy”) on Plixer’s web site (https://www.plixer.com/privacy/) and to the collection, processing, copying, backup, storage, transfer and use of this Collected Data by Plixer and its service providers, in, from and to the United States, Europe, or other countries or jurisdictions potentially outside of Your or User’s own as part of the Plixer Product, Support Services Subscription. Plixer will only collect, process, copy, backup, store, transfer and use personally identifiable information in accordance with the Privacy Policy.
12. No Other Warranties. THE WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PLIXER AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, WITH REGARD TO THE PLIXER PRODUCT AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES. THE LIMITED WARRANTIES SET FORTH IN SECTION 10 GIVE YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHERS, DEPENDING ON YOUR STATE OR JURISDICTION.
13. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL PLIXER OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, DAMAGES FOR LOSS OF GOODWILL, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER PECUNIARY LOSS) INCURRED BY YOU OR ANY OTHER THIRD PARTY ARISING OUT OF THE USE OF OR INABILITY TO USE THE PLIXER PRODUCT, ANY PRE-RELEASE SOFTWARE, ANY HARDWARE, THE DOCUMENTATION, OR ANY OTHER ACCOMPANYING MATERIALS, OR THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, EVEN IF PLIXER OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, PLIXER’S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS EULA SHALL BE LIMITED IN ANY SINGLE EVENT OR IN THE AGGREGATE TO THE GREATER OF THE AMOUNT ACTUALLY PAID BY YOU FOR THE PLIXER PRODUCT FOR THE TWELVE (12) MONTHS PRIOR TO THE APPLICABLE CAUSE OF ACTION OR EVENT OR ONE HUNDRED UNITED STATES DOLLARS (U.S. $100.00); PROVIDED, HOWEVER, IF YOU HAVE ENTERED INTO AN PLIXER SUPPORT SERVICES AGREEMENT, PLIXER’S ENTIRE LIABILITY REGARDING SUPPORT SERVICES SHALL BE GOVERNED BY THE TERMS OF THAT AGREEMENT. YOU ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT WITH THE UNDERSTANDING THAT PLIXER’S LIABILITY IS LIMITED, THE PRICES PAYABLE HAVE AND WILL BE CALCULATED ACCORDINGLY, AND THAT YOU MAY REDUCE ITS RISK FURTHER BY MAKING APPROPRIATE PROVISION FOR INSURANCE. YOU AGREE TO MITIGATE ANY LOSSES OR DAMAGES. BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
14 Termination.
14.1 Generally. A party may terminate this EULA for cause (a) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (b) if You become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Without prejudice to any of Plixer’s other rights, Plixer may terminate this EULA and any applicable Order(s) if You fail to comply with any term(s) or condition(s) of this EULA and/or any Order(s).
14.2 Obligations upon Termination. Upon the expiration or termination of this EULA for any reason, this Agreement and any license for Plixer Product will immediately terminate. Upon termination, You will make no further use of the Plixer Product and, within 10 days, You will, at Plixer’s option, either destroy or permanently erase all copies of Plixer’s Confidential Information. Upon any termination of this Agreement, You will still be obligated to pay all Fees not in dispute and any expenses that have accrued pursuant to this EULA prior to the effective date of termination. Sections 1, 2, 4, and 8-14, 16.11 and 16.12 will survive the expiration or termination of this Agreement.
15. Laws and Regulations. You must comply with all applicable laws (including, but not limited to, export laws), rules and regulations before using Plixer Product. In addition, You represent and warrant that (a) neither You, nor any of its subsidiaries or affiliates, nor, to Your knowledge, any director, officer, agent, consultant, partner, third party service provider or employee of Yours or any of Your subsidiaries is a person who is directly or indirectly owned or controlled by any person or entity that is currently included on the List of Specially Designated Nationals and Blocked Persons or the Foreign Sanctions Evaders List maintained by the U.S. Treasury Department’s OFAC, or is directly or indirectly owned or controlled by any person or entity who is located, organized, or resident in a country or territory that is, or whose government currently is, the target of countrywide sanctions imposed by any U.S. government Sanctions Authority, which are currently Cuba, Iran, North Korea, North Sudan, and Syria, or any country in which the United States embargoes goods; and (b) You will not directly or indirectly retransfer the Plixer Product to any such country. Plixer may suspend its performance under this Agreement to the extent required by laws applicable to either party.
16. Miscellaneous.
16.1 Marketing. Plixer reserves the right to use the Your corporate logo on Plixer’s web site(s) and in its marketing materials.
16.2 Changes to Rules and Regulations. Plixer reserves the right to revise the terms and conditions of this EULA at any time to ensure compliance with any applicable rules, regulations or laws and You are deemed to be apprised of and bound by any such changes to the terms and conditions resulting from changes to rules, regulations or laws.
16.3 Overall Compliance. You and Your purchase of the Plixer Product and/or use of the Plixer Product will comply with this Agreement and all legal requirements applicable hereto.
16.4 Third Party Engagement. If You wish to engage any third-party, or request that Plixer engage any third-party on Your behalf, to perform any services in connection with Your Subscription, You shall be required to obtain written permission from Plixer and shall be held primarily liable for any and all acts and/or omissions of any such third-party.
16.5 Unauthorized Access or Use. You shall use commercially reasonable efforts to prevent unauthorized access to or use of the Plixer Product and will notify Plixer promptly of any such unauthorized access or use.
16.6 Authority. You represent and warrant that it has the legal power and authority to enter into this Agreement. You represent and warrant that it has not falsely identified itself or provided any false information to gain access to the Plixer Product.
16.7 Disposition of License. You shall not sell, resell, rent, or lease Your license (whether it be through a subscription, or otherwise) unless as otherwise set forth in this EULA or an Order.
16.8 Violations of Rules and Regulations. Plixer reserves the right to seek all remedies available at law and in equity for violations of the terms and conditions of this EULA.
16.9 Force Majeure. Plixer will not be held liable or responsible to You, nor be deemed to have defaulted under or breached this Agreement, for failure or delay in fulfilling or performing any of its obligations under this Agreement to the extent, and for so long as, such failure or delay is caused by or results from causes beyond the reasonable control of Plixer (a “Force Majeure Event”) including, but not limited to, any act of God, fire, natural disaster, pandemic, accident, terrorism, war, acts of war (whether war be declared or not), insurrections, riots, civil commotion, strikes, lockouts or other labor disturbances or any acts, omissions or delays in activity by any governmental authority. If Plixer is prevented or delayed in performing because of a Force Majeure Event it will promptly notify You of the circumstances giving rise to the Force Majeure Event and, if possible, provide a projected duration of the Force Majeure Event. If a Force Majeure Event continues for longer than three consecutive months, either party will thereafter have the option of terminating this Agreement immediately upon written notice to the other party without any resulting liability for early termination.
16.10 Entire Agreement. This EULA, together with any applicable Order, constitutes and incorporates the parties’ entire agreement with respect to the subject matter hereof, and supersedes any and all prior oral and written agreements, understandings and quotations. In the event of a conflict between the terms and conditions of this EULA and an Order, the terms and conditions of this Agreement shall govern. No waiver, alteration, modification, or cancellation of any of the provisions of this EULA shall be binding unless made in writing and signed by both of the parties hereto.
16.11 Choice of Law; Jurisdiction; Venue. This EULA is governed by the laws of the State of Delaware without regard to its principles governing conflicts of law. Any claims or legal actions by one party against the other shall be commenced and maintained in an appropriate state or federal court located in York County, Maine, and both parties hereby submit to the jurisdiction and venue of any such court.
16.12 Confidentiality. Each party hereto acknowledges that by reason of its relationship with the other party hereunder, it may have access to confidential information and materials concerning the other party’s business, technology, and/or products that is confidential to the other party (“Confidential Information”). Each party’s Confidential Information is of substantial value to the party, which value could be impaired if such information was disclosed to third parties or used in violation of this EULA. Written or other tangible Confidential Information must at the time of disclosure be identified and labeled as Confidential Information belonging to the disclosing party. When disclosed orally or visually, Confidential Information must be identified as confidential at the time of the disclosure, with subsequent confirmation in writing within fifteen (15) days after disclosure. Each party agrees that it will not use in any way for its own account or the account of any third party, such Confidential Information, except as authorized under this EULA, and will protect Confidential Information at least to the same extent as it protects its own Confidential Information and to the same extent that a reasonable person would protect such Confidential Information. Neither party may use the other party’s Confidential Information except to perform its duties or exercise its rights under this EULA. The Confidential Information restrictions will not apply to Confidential Information that is (a) already known to the receiving party at the time of access hereunder, (b) becomes publicly available through no wrongful act of the receiving party, (c) independently developed by the receiving party without benefit of the disclosing party’s Confidential Information, (d) has been rightfully received from a third party not under obligation of confidentiality or (v) is required to be disclosed by law, provided the party compelled to disclose the Confidential Information provides the party owning the Confidential Information with prior written notice of disclosure adequate for the owning party to take reasonable action to prevent such disclosure, where reasonably possible. Unless otherwise agreed to by both parties, upon termination of this EULA or an applicable addendum, each party will return the other party’s Confidential Information.
16.13 Audit. During the License Term for the Plixer Product, and any Renewal Term thereafter, and for a period of three (3) years after its expiration or termination, You will take reasonable steps to maintain complete and accurate records of Your use of the Plixer Product sufficient to verify compliance with this EULA. No more than once per twelve (12) month period, You will allow Plixer and its auditors the right to examine such records and any applicable books, systems, and accounts, upon reasonable advanced notice, during Your normal business hours. If the audit discloses underpayment of license fees, You will pay such license fees plus the reasonable cost of the audit within thirty (30) days of receipt of written notice.
16.14 No Assignment or Transfers by You. You shall not sub-license, assign or otherwise transfer the rights granted herein without the prior express written consent of Plixer. If Plixer grants any such consent, You shall be solely responsible for the conduct of all of Your assignees, and the granting of such consent shall in no way modify or affect Your duties to Plixer under this Agreement. Plixer may assign this Agreement to an affiliate or to a third party in the event of a sale or a merger by Plixer. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefits of the parties, and their respective successors and assigns.
16.15 Note to U.S. Government User regarding Restricted Rights. The Plixer Product and documentation are provided with restricted rights. The Plixer Product, as used herein, is a “Commercial Item,” as that term is defined at 48 C.F.R. 2.101, and all software is “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are defined at 48 C.F.R. §252.227-7014(a)(5) and 48 C.F.R. §252.227-7014(a)(1), and used in 48 C.F.R. §12.212 and 48 C.F.R. 227.7202, as applicable. All sales to Government Customer shall be consistent with 48 C.F.R. §12.212, 48 C.F.R. §252.227-7015, 48 C.F.R. §227.7202-1 through 227.7202-4, 48 C.F.R. §52.227-14, and other relevant sections of the Code of Federal Regulations, as applicable. Except to the extent governed by federal law and regulation for Government Customer, the Plixer Product is provided to U.S. Government end users only as (a) a commercial end item(s) and (b) with only those rights as are granted to all other customers pursuant to the terms and conditions contained in this EULA. Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in the aforementioned regulations. Manufacturer is: Plixer LLC, 68 Main Street, Suite 4, Kennebunk, ME 04043; Telephone: (207) 324-8805.
16.16 Severance. If any provision of this Agreement is declared by a court of competent jurisdiction to be invalid, illegal or unenforceable, such provision shall be severed from this Agreement and all the other provisions shall remain in full force and effect.
16.17 Headings. The headings used in this Agreement are intended for convenience only and shall not be deemed to supersede or modify any provisions.
16.18 Waiver. The waiver by Plixer of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach. Except for breach of Plixer’s proprietary rights in the Plixer Product, no action, regardless of form, arising out of this Agreement may be brought by You more than two (2) years after the cause of action has accrued.
Last Updated 12/11/2023