END USER TERMS OF SERVICE
DemandCaster is a business unit of Plex Systems, Inc.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM (AS DEFINED BELOW), YOU AGREE TO THE TERMS OF THIS AGREEMENT. YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT ACCESS OR USE THE SERVICES. THIS MASTER SERVICES AGREEMENT AND EACH ORDER FORM TOGETHER FORM A BINDING AND EXECUTED WRITTEN AGREEMENT BETWEEN CUSTOMER AND PLEX SYSTEMS, INC. (“PLEX”), EFFECTIVE AS OF THE FIRST DATE OF MUTUAL EXECUTION OF THE APPLICABLE ORDER FORM OR ACCEPTANCE BY CUSTOMER (THIS “AGREEMENT”).
The Company may not access the Services (as defined below) if Customer is a direct competitor.
“Affiliate” means a company which is controlled, under common control or controlling Customer during the period of such control. For the purposes of this Agreement, “control” means ownership, directly or indirectly, of more than 50% of the voting securities.
“Beta Services” means services or functionality that may be made available by Plex to Customer to evaluate at its option at no additional charge which is clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation or a similar description.
“Critical Control Software” means modules that report the number of authorized Users and permit Plex the ability to monitor certain usage of the Subscription Services.
“Customer Data” means any data, information or material submitted by Customer.
“Documentation” means Plex’s electronic and hardcopy user guides, help and training materials, and other documentation for the Subscription Services, which may be updated by Plex from time to time.
“Intellectual Property Rights” means any patents and applications therefor, copyrights, trademarks, domain name rights, trade secret rights and all other intellectual property rights.
“Law” means any local, state, national, administrative and/or foreign laws, treaties, regulations and/or orders applicable to a respective party.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents, or programs.
“Order Form” means an ordering document for the purchase of Services hereunder entered into between Plex and Customer from time to time. Order Forms are deemed incorporated herein by reference.
“Professional Services” means the professional services described in the applicable Order Form.
“Services” means, collectively, the Subscription Services and, if applicable, the Professional Services.
“Subscription Services” means the Web-based platform provided by Plex under an Order Form.
“SLA” means the Support and Services Level Availability Policy attached as Exhibit A, which may be updated by Plex from time to time subject to the warranty in Section 6.1(ii) which prohibits a material decrease in functionality, which will be construed for the SLA as prohibiting a material decrease in uptime commitments, security, or reliability of the backup and restoration process.
“Subscription Fees” means the fees for the Subscription Services ordered by Customer pursuant to an Order Form.
“Taxes” means any local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including VAT, GST, excise, sales, use or withholding taxes.
“User” means an employee, contractor or agent of Customer and its Affiliates authorized by Customer to use the Services on behalf of Customer.
2. The Subscription Services.
2.1. Provision of the Services. Plex shall: (i) make the Subscription Services available to Customer pursuant to the terms of this Agreement and the applicable Order Form during the applicable Subscription Term; (ii) provide standard support for the Subscription Services at no additional charge, and/or upgraded support if purchased.
2.2. Beta Services. From time to time, Plex may make Beta Services available to Customer at no charge. Customer may choose to try such Beta Services or not in Customer’s sole discretion. Beta Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms. Beta Services are provided “AS IS” (without any representations, warranties or indemnities) and not considered “Services” under this Agreement, however, all restrictions, Plex reservation of rights and Customer obligations concerning the Services, and use of any related Third Party Software, shall apply equally to Customer’s use of Beta Services. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available without the applicable Beta Services designation. Plex may discontinue Beta Services at any time in Plex’s sole discretion and may never make them generally available. Plex will have no liability for any harm or damage arising out of or in connection with a Beta Service.
2.3. Federal Government End Use Provisions (if applicable). Plex provides the Subscription Services, including related software and technology, for federal government end use solely in accordance with the following: Government technical data and software rights related to the Subscription Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202.3 (Rights in Commercial Computer Software or Computer Software Documentation).
3.1. Invoice and Payment. Except as otherwise set forth in an Order Form, all fees due hereunder are quoted and payable in United States dollars and (except fees subject to good faith dispute) shall be due and payable within thirty (30) days of invoice date. Customer shall provide Plex with complete and accurate billing and contact information including a valid email address for receipt of invoices. Except as expressly set forth herein, payment obligations are non-cancelable and fees paid are non-refundable and quantities purchased cannot be decreased during the relevant Subscription Term.
3.2. Overdue Payments. Without limiting the rights and remedies available to it under this Agreement or by Law, any payment not received from Customer by the due date shall accrue (except with respect to charges then under reasonable and good faith dispute), late charges at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid plus all reasonable expenses and fees of collection. Customer is obligated to pay in a timely manner the undisputed portion of any disputed invoice.
3.3. Taxes. Fees do not include any Taxes. Customer is responsible for paying all Taxes associated with the Services provided to Customer under this Agreement, excluding taxes assessable against Plex on its income, property taxes and employees. If Plex has the legal obligation to pay or collect any such Taxes, Plex will invoice Customer and Customer will pay that amount unless Customer provides Plex with a valid tax exemption certificate authorized by the appropriate taxing authority.
3.4. Suspension of Service for Non-Payment. If Customer’s account is more than thirty (30) days past due (except with respect to charges subject to a reasonable and good faith dispute), in addition to any other rights or remedies it may have under this Agreement or by Law, Plex reserves the right to suspend Customer’s access to the Services until such amounts are paid in full.
3.5. Billing Disputes. Any billing dispute must be in writing and submitted to Plex within thirty (30) days of the invoice date and include a reasonably detailed statement describing the nature and amount of the disputed charge(s) as well as the reason(s) why a credit or refund is being requested. Customer shall cooperate with Plex to promptly address and attempt to resolve the disputed charge(s). Customer acknowledges and agrees that in the event Customer does not submit a dispute in accordance herewith, Customer waives all rights to dispute an invoice after thirty (30) days of such invoice date has elapsed and the charges under the invoice will be considered correct and binding on Customer. Notwithstanding the foregoing, Customer shall pay in a timely manner the undisputed portion of any disputed invoice.
4. Proprietary Rights.
4.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, Plex and its licensors reserve all of its/their right, title and interest in and to the Services, including all of its/their related Intellectual Property Rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
4.2. Grant of Rights. Plex hereby grants Customer a worldwide (subject to export regulations), non-exclusive, non-transferable, right to use the Services and Documentation, solely for the internal business purposes of Customer and Affiliates and solely during the applicable Subscription Term, subject to the terms and conditions of this Agreement within scope of use defined in the relevant Order Form.
4.3. Customer Obligations; Grant Restrictions. Customer shall not: (i) modify, copy or create any derivative works based on the Services or Documentation; (ii) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau or otherwise make the Services or Documentation available to any third party, other than to Users as permitted herein; (iii) reverse engineer or decompile any portion of the Services or Documentation, including but not limited to, any software utilized by Plex in the provision of the Services and Documentation, except to the extent required by Law; (iv) access the Services or Documentation in order to build any competitive or commercially available product or service or for purposes of monitoring the availability, performance or functionality of the Services, or for any other benchmarking or competitive purposes; (v) copy any features, functions, integrations, interfaces or graphics of the Service or Documentation; (vi) use the Services in violation of Laws or outside the scope of the rights granted in Section 4.2; (vii) in connection with the Services, send or store infringing, obscene, threatening, or otherwise unlawful or tortious material, including material that violates privacy rights; (viii) send or store Malicious Code in connection with the Services; (ix) interfere with or disrupt performance of the Services or the data contained therein; or (x) attempt to gain access to the Services or its related systems or networks in a manner not set forth in the Documentation. Customer shall: (a) have sole responsibility for the accuracy, quality and legality of all Customer Data; and (b) prevent unauthorized access to, or use of, the Services, and notify Plex promptly of any such unauthorized access or use. Customer shall be responsible and liable for the acts and omissions of all Users and Affiliates relating to this Agreement.
4.4. Ownership and Use of Customer Data. Customer owns all right, title and interest in and to all its Customer Data. Subject to the terms of this Agreement, Customer grants Plex and its Affiliates a worldwide, limited, non-exclusive, non-transferable (except as set forth in Section 10.6) right to (i) use, copy, transmit and display Customer Data to provide Customer the Services, (ii) prevent or address service or technical problems and/or maintain the Critical Control Software, (iii) de-identify and aggregate Customer Data to analyze and report system metrics and other statistical data and (iv) enforce the rights of the parties under the Agreement and Order Form(s). Customer reserves all rights in Customer Data not expressly granted to Plex.
4.5. Use of Customer Input. Customer grants Plex a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into Plex’s products and services any suggestion, enhancement request, recommendation, correction or other feedback by provided by Customer or the Users relating to the Services.
5.1. Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Customer Confidential Information includes Customer Data; Plex Confidential Information includes the Services and Documentation; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party or (iv) was independently developed by the Receiving Party. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (a) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (b) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, advisors and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections, or have ethical duties to the Receiving Party, not materially less protective of the Confidential Information than those herein. Each party may confidentially disclose the terms of this Agreement and any Order Form to any actual or potential financing source or acquirer. Notwithstanding the foregoing, Plex may disclose the terms of this Agreement and any applicable Order Form to a subcontractor or Third Party Software provider to the extent necessary to perform Plex’s obligations to Customer under this Agreement, under terms of confidentiality materially as protective as set forth herein.
5.2. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by Law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
6. Representations, Warranties, Exclusive Remedies and Disclaimers.
6.1. Warranties. Each party warrants that it has the authority to enter into this Agreement and, in connection with its performance of this Agreement, shall comply with all Laws applicable to it related to data privacy, international communications and the transmission of technical or personal data. Plex warrants that during the applicable Subscription Term (i) the Subscription Service shall perform materially in accordance with the Documentation; (ii) the functionality of the Subscription Service will not be materially decreased during the applicable Subscription Term; and (iii) it will use commercially reasonable efforts to prevent the introduction of Malicious Code into Customer’s systems (except for any Malicious Code submitted by Customer or its Users to the Service).
6.2. Exclusive Remedies. As Customer’s exclusive remedy and Plex’s sole liability for breach of the warranties set forth in Section 6.1 (i) and (ii), (i) Plex shall correct the non-conforming Subscription Service at no additional charge to Customer or (ii) in the event Plex is unable to correct such deficiencies after good-faith efforts, Plex shall refund Customer amounts paid that are attributable to the defective Subscription Service from the date Plex received such notice. To receive warranty remedies, Customer must promptly report deficiencies in writing to Plex, but no later than thirty (30) days of the first date the deficiency is identified by Customer.
6.3. DISCLAIMERS. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY LAW. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD PARTY HOSTING PROVIDERS. PLEX DOES NOT WARRANT THAT THE SERVICES WILL BE ERROR FREE OR UNINTERRUPTED.
7. Mutual Indemnification.
7.1. Indemnification by Plex. Plex shall defend Customer, its officers, directors, employees and contractors harmless against any third party claims, demands, suits, or proceedings (“Claims”) against Customer alleging that the use of the Subscription Service as contemplated hereunder infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party, and shall pay all costs and damages finally awarded against Customer by a court of competent jurisdiction as a result of any such Claim; provided, however, that Customer: (i) promptly gives written notice of the Claim to Plex; (ii) gives Plex sole control of the defense and settlement of the Claim (provided that Plex may not settle any Claim unless it unconditionally releases Customer of all liability); and (iii) provides to Plex, at Plex’s cost, all reasonable assistance. Plex shall not be required to indemnify Customer in the event of: (a) modification of the Subscription Service by Customer, its employees or Users in conflict with Customer’s obligations or as a result of any prohibited activity as set forth herein; (b) use of the Subscription Service in an unauthorized manner or any manner inconsistent with the Documentation; or (c) use of the Subscription Service in combination with any other product or service not provided by Plex. If Customer is enjoined from using the Subscription Service or Plex reasonably believes a Claim may be forthcoming, Plex shall have the right, at its sole option, to obtain for Customer the right to continue use of the Subscription Service or to replace or modify the Subscription Service so that it is no longer infringing. If neither of the foregoing options is reasonably available to Plex, then this Agreement may be terminated at the option of Plex and Plex’s sole liability shall be to provide a pro rata refund of any prepaid fees for the Subscription Service that was to be provided after the effective date of termination.
7.2. Indemnification by Customer. Customer shall defend Plex, its officers, directors, employees and contractors harmless from any Claims against Plex alleging that the Customer Data infringes the rights of, or has caused harm to, a third party or violates any Law, and shall pay all costs and damages finally awarded against Plex by a court of competent jurisdiction as a result of any such Claim; provided, however, that Plex: (i) promptly gives written notice of the Claim to Customer; (ii) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle any Claim unless it unconditionally releases Plex of all liability); and (iii) provides to Customer, at Customer’s cost, all reasonable assistance.
8. Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY LAW AND EXCEPT WITH RESPECT TO EITHER PARTY’S INDEMNIFICATION OBLIGATIONS AND/OR CUSTOMER’S BREACH OF SECTION 4.3 OR PAYMENT OBLIGATIONS, IN NO EVENT SHALL (A) EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, OR FOR ANY LOST PROFITS, LOSS OF USE, COST OF DATA RECONSTRUCTION, COST OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES OR (B) EITHER PARTY’S (OR PLEX’S THIRD PARTY LICENSORS’) AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE SUBSCRIPTION FEES ACTUALLY PAID BY CUSTOMER DURING THE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD FOR THE SUBCRIPTINO SERVICE FROM WHICH THE CLAIM AROSE.
9. Term and Termination.
9.1. Term of Agreement and Order Form(s). The term of this Agreement commences on the Effective Date and continues until all Order Forms have expired or otherwise been terminated (“Term”). The Subscription Term for each Order Form shall commence on the effective date of the applicable Order Form, and shall continue as set forth therein, and will automatically renew for successive twelve (12) month terms unless either party gives the other party written notice of non-renewal at least sixty (60) days prior to the expiration of the then-current Subscription Term.
9.2. Termination. Either party may terminate this Agreement: (i) upon thirty (30) days prior written notice to the other party of a material breach by the other party if such breach remains uncured at the expiration of such notice period or (ii) immediately in the event the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. In the event the Agreement is terminated, all Order Forms are simultaneously terminated.
9.3. Effect of Termination. Upon any termination of this Agreement, Customer shall, as of the date of such termination, immediately cease accessing and otherwise utilizing the applicable Service (except as permitted under Section 9.4) and Plex Confidential Information. Termination for any reason shall not relieve Customer of the obligation to pay any fees accrued or due and payable to Plex prior to the effective date of termination and termination for any reason other than for uncured material breach by Plex shall not relieve Customer of the obligation to pay all future amounts due under all order forms. Upon termination for cause by Plex, all future amounts due under all Order Forms shall be accelerated and become due and payable immediately. Upon any termination for cause by Customer, Plex shall refund Customer any prepaid fees for the affected Service that were to be provided after the effective date of termination.
9.4. Retrieval of Customer Data. Upon request by Customer made within thirty (30) days after any expiration or termination of this Agreement, Plex will make Customer Data available to Customer through the Service on a limited basis solely for purposes of Customer retrieving Customer Data for a period of up to thirty (30) day after such request is received by Plex. After such thirty (30) day period, Plex will have no obligation to maintain or provide any Customer Data and may thereafter, unless legally prohibited, delete all Customer Data. If Customer requires Plex’s assistance, Customer may acquire Plex professional services at Plex’s then-current billing rates pursuant to a separately executed Statement of Work and Professional Services Agreement. Customer will determine the scope of the professional services engaged to extract data from the Plex system and as such may increase or decrease Plex’s professional services involvement in order to control costs.
10. General Provisions.
10.1. Export Compliance. The Services, Documentation and other technology Plex makes available, and derivatives thereof, may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. Customer shall not permit Users to access or use any Service or Documentation in a U.S. embargoed country or in violation of any U.S. export law or regulation.
10.2. Employee Solicitation. While this Agreement is in effect and for one (1) year thereafter, Customer shall not, directly or indirectly, solicit for employment or engage (whether as an employee, independent contractor or consultant) any of Plex employees or subcontractors who was involved in providing the Services. An employee’s response to a general, non-targeted advertisement for employment shall not be deemed solicitation for the purposes of this Agreement.
10.3. Publicity. Neither party may issue any press release regarding this Agreement without the other party’s prior written consent. Either party may include the other’s name and logo in customer or vendor lists in accordance with the other party’s standard guidelines.
10.4. Entire Agreement and Order of Precedence. This Agreement is the entire agreement between Customer and Plex regarding Customer’s use of Services and Documentation and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Except as otherwise provided herein, no modification, amendment or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in Customer purchase order or in any other of Customer order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (i) the applicable Order Form; (ii) this Agreement; and (iii) the Documentation.
10.5. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (together with all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of its assets provided that the assignee agrees in writing to be bound by all the terms of this Agreement and, in the case of an assignment by Customer, all past due fees not subject to a reasonable good faith dispute are paid in full. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, Plex will refund to Customer any prepaid fees for Subscription Services allocable to the remainder of the then-current Subscription Term for the period after the effective date of such termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
10.6. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third party beneficiaries under this Agreement.
10.7. Force Majeure. Neither party shall be liable to the other for any delay or failure to perform hereunder (excluding payment obligations) due to circumstances beyond such party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (excluding those involving such party’s employees), service disruptions involving hardware, software or power systems not within such party’s possession or reasonable control, and denial of service attacks.
10.8. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right or any other right. Any waiver of any right or remedy under this Agreement must be in writing and signed by each party. A waiver on one occasion shall not be construed as a waiver of any right or remedy on any future occasion. Except as otherwise expressly stated in this Agreement, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
10.9. Governing Law; Venue. This Agreement and any claim, controversy, right, obligation or dispute arising under or related to this Agreement or any Order Form shall be governed by and construed in accordance with the laws of the State of Michigan, USA, without regard to conflicts of laws principles. The parties agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods do not apply to this Agreement. The parties irrevocably consent to the exclusive jurisdiction and venue of the state courts in Oakland County, Michigan or federal courts in the Eastern District of Michigan, U.S. The parties waive any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
10.10. Notices. Unless otherwise provided in this Agreement, all notices (except for routine business communications, e.g., renewal notices and information, maintenance windows, which may be sent by email) shall be in writing and sent via certified or registered mail, return receipt requested, or by overnight courier service. Notices to Plex shall be addressed to the Chief Financial Officer, with a copy to the Chief Legal Officer, at Plex’s principal place of business located at 900 Tower Dr., Suite 1500, Troy, MI, 48098. Notices to Customer shall be addressed to the signatory at Customer’s principal place of business set forth in the Order Form to which these Terms of Service apply.
10.11. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
10.12. Counterparts; Electronic Signatures. This Agreement and any Order Form may be executed and delivered in any number of counterparts by facsimile, emailed PDF or electronic signature through DocuSign or other service provider designated by Plex, each of which will be deemed an original, but all of which together will constitute one and the same instrument and, notwithstanding their date of execution, shall be deemed to be effective as of the Effective Date (unless such document expressly provides otherwise).
Support and Service Level Availability
Service Availability Commitment. During the term of this Agreement, the Services will be available no less than 99.5% of the total number of minutes within a calendar month (the “Monthly System Availability Commitment”). The achievement of System Availability Commitment excludes the following: (i) any scheduled maintenance, including without limitation scheduled maintenance communicated to Customer in writing at least four (4) business days in advance; (ii) any unavailability due to any force majeure event as set forth in the Agreement; (iii) any problem resulting from Customer using the Services in conjunction with any hardware or software not provided by Plex; (iv) any interruption or delay in providing access to the Services resulting from telecommunications or internet problems, power failures and/or service provider failures outside of Plex’s datacenter; (v) any interruption or unavailability resulting from Customer’s use of the Services in an improper, unauthorized or unlawful manner; (vi) any problem resulting from Customer’s or any third party’s acts, errors or omissions or any software and/or systems not provided by Plex; and (vii) any interruption resulting from disconnection or suspension of the Services for nonpayment in accordance with Section 3.4 of the Agreement. Plex will track compliance with the Monthly System Availability Commitment on a monthly basis and will provide Customer with a report upon written request.
Scheduled and Unscheduled Maintenance. Plex may have weekly or bi-weekly scheduled maintenance period on Sundays between 6 AM ET to noon ET to perform system maintenance, backup and upgrade functions for the Services. If scheduled maintenance is required outside of this maintenance period, Plex will notify Customer at least four (4) business days in advance. In the event unscheduled maintenance may be required to resolve issues that are critical for performance of the Services, Plex will notify Customer as soon as practicable under the circumstances regarding any unscheduled maintenance. All scheduled and unscheduled maintenance notifications are logged and communicated to Customer electronically in writing via the Services. All of the Severity Levels listed in the customer care plans below exclude scheduled maintenance.
System Availability Credit. Any request for a credit must be made in writing by the Customer within thirty (30) days following the last day of the month of Plex’s failure to meet the Monthly System Availability Commitment. Upon such request, Plex will issue a credit of 10% of the Subscription Fee divided by twelve (12) for the month of the failure (the “System Availability Credit”). If a written request for credit is not provided within 30 calendar days following the end of the month for which a Customer is seeking the System Availability Credit, Customer acknowledges and agrees that the right to receive a System Availability Credit with respect for failure to achieve the Monthly System Availability Commitment shall be deemed waived. The System Availability Credit shall be Customer’s sole and exclusive remedy in the event that the Monthly System Availability Commitment has not been achieved and, under no circumstance, shall Plex’s failure to meet the Monthly System Availability Commitment be deemed a default or breach of the Agreement.
Support. DemandCaster’s self-service support site is available 24 – 7 at https://demandcaster.zendesk.com/hc/en-us. During the entire term of this Agreement, DemandCaster personnel will provide no-charge email, telephone, and web-conference based support for critical and how to issues that can not be addressed via the self-service support site. To initiate a support request, a ticket must be created by emailing our support ticket system at email@example.com. If upon receiving the request, the support agent determines that telephone or web-conference support is necessary, a time will be scheduled via the support ticket.
Phone and web-conference support will be provided during the hours of 8:00 am to 6:00 pm ET from Monday through Friday excluding United States holidays. All submitted tickets will receive an immediate notification of receipt followed by a support personnel response within 4 hours during normal business hours. All efforts will be made to respond quickly during off hours.
Any support request that is not related to “how to use DemandCaster,” a bug fix, or other DemandCaster system related issue are considered consulting and/or custom programming and will be the subject of an agreed upon work order.