These General Transaction Terms and Conditions (“General Terms”) exclusively govern and represent the legal agreement made by and between the licensee of Plixer Product (later defined) (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”) governing any license issued to You for any software, or service(s) (“License”), which may include, without limitation, media, printed materials, accompanying services, content package(s), cloud-based software and/or cloud-based or electronic documentation (“Documentation”) (together the “Plixer Product”). The applicable order (each an “Order”), any statement of work, these General Terms, any applicable Supplemental Terms, and all other terms referenced or incorporated therein, collectively constitute the agreement of the parties (“Agreement”). Any conflict or inconsistency in the Agreement will be resolved in the following order of precedence: (1) the Order, (2) these General Terms, (3) any applicable Supplemental Terms, (4) the applicable SOW, and (5) the Documentation.
1.0 License Term. The license term (“License Term”) of an Order shall be either for (a) a fixed term; or (b) a perpetual term.
1.1 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 15.
1.2 If the License Term is perpetual, this Agreement shall commence on the Effective Date 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. Each Renewal Term shall automatically renew for the same length, 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. Professional Services.
2.1 Professional Services. You may retain Plixer to perform professional services (“Professional Services”) as the parties may agree upon in writing in an Order. Plixer will use reasonable efforts to carry out the Professional Services stated in the Order and to provide any resulting functionality in the Plixer Product made available online to You and Users. Except as the parties otherwise agree in an Order, Professional Services and the results thereof are made available “AS IS.” In addition, any Professional Services, whether ordered as part of the Plixer Product, or otherwise, expire at the end of the term of the applicable Purchase Order.
2.2 Time and Materials. Unless otherwise agreed to in writing in an Order, Professional Services are provided by Plixer on a time and materials basis at Plixer’s then applicable rates and subject to such deposit or advance payment as Plixer may require. Maintenance and support of code or functionality created by means of Professional Services will likewise be on an Order basis under this Section unless otherwise agreed in writing. The code and functionality made or provided under this Section and all interests therein, including copyrights and trademarks, will be Plixer’s property. Access to the results of Professional Services will be available as part of the Plixer Product, unless otherwise agreed in writing.
3. Fees
3.1 Fees and Use of Account. You agree to pay fees as set forth in the applicable Order or as Plixer and You otherwise agree in writing (the “Fees”). Subject to the Fee structure and calculations, as stated in such Order, and except as otherwise agreed to by the parties in such Order, You will not share Your License with more than one User.
3.2 Payment of Fees. Plixer will invoice You for Fees due and owing upon receipt of an Order from You, payment for which will be due net thirty (30) days from invoice date. Your account will be considered delinquent (in arrears) if payment of Fees in full is not received by the due date specified on the invoice. Amounts due are exclusive of all applicable taxes, levies, or duties, and You will be responsible for payment of all such amounts. All amounts are payable in U.S. dollars. If You believe that any specific charge under this Agreement is incorrect, in order to be considered for a credit, You must contact Plixer in writing within 30 days of invoice date setting forth the nature and amount of the requested correction for Plixer to determine, in its sole discretion, what, if any, credit is due to You.
3.3 Non-Payment. In addition to other applicable remedies, Plixer reserves the right to suspend and/or terminate Your access to the Plixer Product and/or terminate this Agreement, upon fourteen (14) calendar days’ written or electronic notification, in the event Your account becomes delinquent (falls into arrears). Written or electronic notification will go to Your designated billing contact, as set forth herein or in the applicable Order, the first day that payment is delinquent.
3.4 Fee for Delinquency. Delinquent invoices are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection, including reasonable attorneys’ fees and court costs. You will be charged all applicable Fees, including Fees for all Users then authorized, during any period of suspension.’
3.5 Processing Charge Back Fee(s). If at any point during the Term, You mandate or require that Plixer use a vendor payment portal or compliance portal that charges or in any way assesses Plixer with a subscription fee or a percentage of any uploaded invoice as a required cost of doing business, Plixer will invoice You for the cost of this processing fee. This fee(s) shall be listed on Your invoice as “Charge Back Fee(s).”
3.6 Fee Payment Methods. Plixer’s preferred method for receipt of payment for Fees are ACH, bank check, or wire transfer. You are to contact Plixer at (207) 324-8805 or email [email protected] with any questions regarding acceptable payment methods.
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 these General Terms prohibited.
6. Warranty Regarding the Plixer Product. Plixer warrants that the Plixer Product will perform as described in the applicable online user documentation available via Plixer’s website and in accordance with Section 10 herein. In the event of a conflict between the online user documentation and these General Terms, the terms of these General Terms will govern.
7. 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.
8. 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 these General Terms. 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.
9. Indemnification. The Plixer Product is intended for use as specified in these General Terms 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 twelve (12) months from Your date of purchase based upon its originally installed version, that (a) the Plixer Product will perform substantially in accordance with Plixer’s written and/or cloud-based materials 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, Plixer and its suppliers’ entire liability and Your exclusive remedy shall be, at Plixer’s sole option, either (a) return of the price paid by You for the Plixer Product prorated to reflect the period of time for which the Plixer Product did not perform as warranted during the twelve (12) month warranty period, 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 Hardware. This limited warranty for Hardware (“Hardware Limited Warranty”) does not cover defects, damage or failure of Hardware caused by misuse, accident, unauthorized modification, improper use or maintenance, a Force Majeure Event or any other damage or failure caused by You and/or a third-party or a third-party product. Except for the warranties specifically described in this Hardware Limited Warranty, any technical or other support provided for Hardware, such as phone or website support, is provided “as-is” without warranty of any kind. This Hardware Limited Warranty is void if product or part identification labels are removed from the Hardware without Plixer’s written authorization. Further, this Hardware Limited Warranty is void if additional Hardware or Plixer Product is installed on the Hardware without Plixer’s written authorization, or if any tampering is detected with the Hardware. This Hardware Limited Warranty does not apply to any Hardware that is in an unsuitable operating environment, has been altered, except as authorized by Plixer. UNDER NO CIRCUMSTANCES IS PLIXER LIABLE TO YOU FOR ANY OF THE FOLLOWING: (A) LOSS OF OR DAMAGE TO RECORDS OR DATA, (B) THIRD- PARTY CLAIMS FOR DAMAGES, OR (C) CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING LOST PROFITS OR LOST OPPORTUNITIES), EVEN IF PLIXER IS INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. PLIXER SHALL HAVE NO LIABILITY OR OBLIGATION FOR ANY DAMAGES THAT ARISE FROM THE USE OF HARDWARE AS PART OF OR IN COMBINATION WITH ANY DEVICES, PARTS OR THIRD-PARTY PRODUCTS THAT ARE NOT PROVIDED BY PLIXER AND ARE INCONSISTENT WITH THE DESIGNED PURPOSE OF PLIXER’S HARDWARE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. PLIXER WARRANTS THE MATERIAL AND WORKMANSHIP OF ANY HARDWARE PURCHASED FROM US THAT WAS NOT MANUFACTURED BY PLIXER FOR 30 DAYS. THIS IS THE ENTIRE LIMITED WARRANTY ON HARDWARE AND DOES NOT APPLY IN ANY WAY TO ANY PLIXER PRODUCT LICENSED BY YOU. ANY WARRANTY ON PLIXER PRODUCT LICENSED BY YOU IS SET OUT IN SECTION 10.1.
11. 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 these General Terms. 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 reasonable efforts to not use such technical information in a form that personally identifies You.
12. Privacy and Collection of Personal or System Information
12.1 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, “Data”). The collection of this 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 threats and vulnerabilities on You and Users’ computer network), 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 Your Users. You may be required to uninstall the Plixer Product or disable Support Services or its service subscription to stop further Data collection that supports these functions.
12.2 Privacy Policy. By agreeing to these General Terms, or using the Plixer Product, Support Services or Subscription, You and Users agree to Plixer’s Privacy Policy on Plixer’s web site and to the collection, processing, copying, backup, storage, transfer and use of this Data by Plixer and its service providers, in, from and to the United States, Europe, or other countries or jurisdictions potentially outside of You or Your 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.
13. 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 14 GIVE YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHERS, DEPENDING ON YOUR STATE OR JURISDICTION.
14. 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 THESE GENERAL CONDITIONS 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.
15. Termination.
15.1 Generally. A party may terminate these General Terms 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 these General Terms and any applicable Order(s) if You fail to comply with any term(s) or condition(s) of these General Terms and/or any Order(s).
15.2 Refund or Payment upon Termination. If the Agreement is terminated by You in accordance with Section 15.1, Plixer will refund You any prepaid Fees, specifically excluding any payment by You for Hardware, covering the remainder of the term of an Order(s) after the effective date of termination. If this Agreement is terminated by Plixer in accordance with Section 15.1, You will remain obligated to pay any unpaid fees covering the remainder of the term of any Order(s). In no event will termination relieve You of its obligation to pay any Fees payable to Plixer for the period prior to the effective date of termination.
15.3 Obligations upon Termination. Upon the expiration or termination of the Agreement for any reason, this Agreement and any license for Plixer Product will immediately terminate. If any prepaid Hardware is in Your possession, to include, but not be limited to Plixer’s Server, it may be retained by You. 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 the Agreement prior to the effective date of termination. Sections 1, 3-6, 9, 10, 12,13-17 will survive the expiration or termination of this Agreement.
16. 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 Your subsidiaries or affiliates, nor, to Your knowledge, any director, officer, agent, consultant, partner, third party service provider or employee of You or any of its 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.
17. Miscellaneous.
17.1 Marketing. Plixer reserves the right to use Your corporate logo on Plixer’s web site(s) and in its marketing materials.
17.2 Changes to Rules and Regulations. Plixer reserves the right to revise the terms and conditions of these General Terms and any other Plixer agreement(s), term(s) or condition(s) applicable to the Plixer Product 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 such documents resulting from changes to rules, regulations or laws.
17.3 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.
17.4 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 use or 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.
17.5 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.
17.6 Authority. You represent and warrant that You have the legal power and authority to enter into this Agreement. You represent and warrant that You have not falsely identified yourself nor provided any false information to gain access to the Plixer Product.
17.7 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 these General Terms or an Order.
17.8 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 these General Terms .
17.9 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.
17.10 Entire Agreement. These General Terms, together with each Order and the EULA (where applicable), 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 these General Terms and Conditions, the EULA and an Order, the terms and conditions of these General Terms shall govern. No waiver, alteration, modification, or cancellation of any of the provisions of these General Terms shall be binding unless made in writing and signed by both of the parties hereto.
17.11 Choice of Law; Jurisdiction; Venue. These General Terms are 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.
17.12 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 these General Terms. 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 these General Terms, 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 these General Terms . 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 these General Terms or an applicable addendum, each party will return the other party’s Confidential Information.
17.13 Suggestions and Feedback. All suggestions or feedback provided by You to Plixer with respect to the Plixer Product shall be Plixer’s property. Plixer may use, copy, modify, publish, or redistribute the submission and its contents for any purpose and in any way without any compensation to You. You also agree that Plixer does not waive any rights to use similar or related ideas previously known to Plixer, developed by its employees, or obtained from other sources.
17.14 Audit. During the License Term for the Plixer Product 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 these General Terms. 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.
17.15 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 the duties of You 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.
17.16 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.
17.17 Headings. The headings used in this Agreement are intended for convenience only and shall not be deemed to supersede or modify any provisions.
17.18 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