TERMS AND CONDITIONS

Last Updated: December 27, 2022

Thanks for using Plytix!

Please read through these Terms (“Terms”). By browsing or using the Site or the Platform, you are fully agreeing to these Terms, which means a legal agreement is created between you and Plytix (“Agreement”). To help you best understand these Terms, we’ll start with the basics and some important definitions, and then we’ll go through the Terms for using the Site and the Platform.

The Basics

The following Terms apply to all users of the Site and the Platform. In addition, all applicable laws will also apply to your access and use of the Site and the Platform.

Plytix offers a cloud-based platform designed to import, store, and export data, documents, and digital media provided by the Customer. Our Platform also serves as a space for different team members or Users to collaborate.

Please take a look at our Privacy Policy, which explains how we handle your personal information, GDPR, and cookies when you use our site: https://www.plytix.com/privacy

1. Definitions

Here are some definitions that apply to this Agreement:

“Account” means an account on the Platform.

“Analytics Data” means statistics, metrics, and other analytics data that may be collected by Customer via Google Analytics and/or other 3rd party data sources.

“Anonymous Data” means Data that has been anonymized so that the Customer isn’t identified as the source of that Data.

“Brands” means a company that is the legal owner of one or more products and owns all trademarks, IP, etc. for that or those products.

“Confidential Information” means any confidential information disclosed by a Party to the other Party. This includes any information that is confidential in nature or is directly disclosed as confidential. This type of information may be written or spoken.

Confidential Information does not include information which is: (i) already known by Plytix and not required to be kept confidential by the Customer; (ii) independently developed by Plytix; (iii) publicly available, (iv) rightfully disclosed to Plytix from a third party that isn’t required to keep the information confidential; (v) approved for release by written agreement with the Customer; or (vi) Anonymous Data.

“Customer” or “you” means the company, organization, or individual linked to the account that enters into this Agreement with Plytix. As mentioned earlier, the Customer creates an Agreement by accepting the Terms or by signing a Master Hosted Service Agreement.

“Documentation” means the manuals, specifications, FAQs, and other written and electronic materials created with the purpose to describe the functionality, features, operating characteristics, maintenance, and use of the Platform. These materials are provided by Plytix.

“Party” means either of Customer or Plytix and “Parties” means both of Customer and Plytix.

“Payment Terms” means the fees applicable to your Subscription Plan.

“Platform” means Plytix’s cloud-based product information management platform, currently called “Plytix,” including any cloud-based elements, modules, the relevant functionality, content (excluding Customer-Supplied Content), concepts, features, and related documentation. This also includes all updates and customizations.

“Plytix”, “we” or “us” means Plytix.com Inc. headquartered at 8 The Green, Suite B, Dover, DE, 19901, United States.

“Privacy Policy” means Plytix’s Privacy Policy. As previously mentioned, these may be updated by Plytix from time to time. The current version is available on the Platform.

“Resellers” means a company that is a reseller of products legally owned by another company.

“Services” means all services provided or made available to the Customer by Plytix under this Agreement or any Subscription Plan. These services include but aren’t limited to the access and functionality of the Platform and the Support Services.

“Site” means this and any other website(s) offered by Plytix.

“Subscription Plan” means the type of subscription that Customers may sign up for in order to access the Platform.

“Support Services” means the dedicated account manager and the support services described in Section 4. 

“User” means one of the Customer’s employees, representatives, and any other individual permitted by the Customer to access the Platform. These Users typically will be in connection with the Customer’s business or educational affairs.

“Verified Brands” means Brands that have been through a verification process by Plytix and where we have confirmed that the company is
the legal owner of a GS1 Company Prefix¹. The GS1 Company Prefix is used to identify if a product is legally owned by a Verified Brand.

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¹ https://www.gtin.info/check-company-prefix/

 

Account

2. Subscription Plans

2.1.  Services. Plytix offers Customers access to the Platform. Customers are granted access to the Platform via either a Free Subscription Plan or a variety of Paid Subscription Plans. Subscription Plans may vary in their terms such as the level of Platform functionality available to Customers, the fees charged to Customer, and the timing of fees charged to Customer. Subscription Plans are listed and described further on our pricing page.

2.1.A. Free Subscription Plan. This Subscription Plan comes with a free Account (“Free Subscription Plan”). With a Free Subscription Plan, you will have access to limited Platform functionality. To see all that our Free Subscription Plan has to offer, go to our pricing page. Our Free Subscription Plan includes email and chat support as listed in Section 4.

2.1.B. Paid Subscription Plans. This Subscription Plan requires payment for the Account (“Paid Subscription Plan”). We offer a variety of Paid Subscription Plans. See what each Paid Subscription Plan includes on our pricing page. Our Paid Subscription Plans receive full Support Services as listed in Section 4.

2.2.  Privacy Policy. Both Plytix and the Customer must use the information and data of the other Party following the terms of the Privacy Policy. If there are any conflicting terms found between the Privacy Policy and the terms of this Agreement, the terms of the Privacy Policy will be used as a final decision.

 

3. Access and Availability

3.1.  Authorized Users. Users with confirmed email addresses and access to at least one Account may access the Platform. Account administrators and owners are also responsible for notifying Plytix support immediately of any unauthorized use of your Accounts. You should also notify us about any other known or suspected breaches of security. You acknowledge that any User should be presented with and agree to these Terms and the Privacy Policy before using our Platform.

3.2.  Availability. We will make all efforts necessary to ensure that the Platform is available to you based on the terms of your Subscription Plan. In the case that we fail to provide the services of our Platform outlined in these Terms, you will receive a credit. See Service Levels in Exhibit A for more information on Service failures and credits.

3.3.  Suspension. We have the right to suspend any Account if (i) you are using the Platform or Services in a way that breaks this Agreement or the law; (ii) your system or Account has been compromised or unlawfully accessed; (iii) the infrastructure of our Platform needs to be protected by suspending the Platform or Services; (iv) the law requires suspension; or (v) you fail to pay your Subscription Fees after the fourth payment failure warning.

4. Support Services

If you have a free Subscription Plan, you have access to our email and chat support. If you have a Paid Subscription Plan, you will receive access to our email and chat support, as well as a “Customer Success Manager” who is available for unlimited virtual one-on-one meetings upon request. 

Our support hours are from 3am to 8pm EST (Eastern Standard Time) from Monday through Friday.

4.1 Email and Chat Support. Email and chat responses are available during support hours only. We typically respond to email and chat support questions within 8 support hours; in practice, our responses are generally even faster. We do not promise or guarantee any specific response time. We may limit or deny your access to support if we find, in our reasonable discretion, that you are acting in a way that results or has resulted in misuse of support or abuse of the Plytix support team.

To access our email support, please reach out to help@plytix.com or through the contact form in the “Contact Us” section of the Site. To access our chat support, please find the chat box at the bottom right-hand corner of our Site or in our “Resource Hub” on the top bar near the User profile section. We accept email and chat support questions 24 hours a day, 7 days a week.

4.2 Customer Success Manager. “Customer Success Managers” for Paid Subscription Plans are available during our support hours. They are available by contacting their direct email account or through their calendar link. Your account manager information will be provided when you have your official account manager assignment after purchasing your Paid Subscription Plan.

4.3 Support Limitations. We offer technical support regarding our API and the documentation, but we do not offer support for any third-party technologies built on our API. Please contact us to find out if we support your specific integration.

For more information on Account Management, Error Correction, and Feature Requests, please refer to the Support Exhibit in Exhibit A. 

Rights

5. Ownership

5.1.  Retention by Plytix. We own all rights, titles, and interests related to our Platform and Services. Any modifications, upgrades, or developments to the Platform or Services (“Improvements'') are owned exclusively by us. We also have the right to use feedback provided by our Customers about our Platform or Services for any purpose including to create new functional features.

5.2.  Updates. We have the right to improve our Platform or Services at any time. This may include the removal or modifications of certain functionalities. All major changes will be communicated to you in writing and in due time, either through notifications in our Platform or by email. 

5.3.  Customer-Supplied Content. Our Platform allows you to store, modify, and distribute content related to your products. You may also be able to communicate with other team members directly on our Platform. Together, your product content and your communications are referred to as “Customer-Supplied Content.” Customer-Supplied Content will belong to you, but during the time of our Agreement, you allow the Platform to modify your Customer-Supplied Content when your Users have set up rules for automatic data transformation upon distribution, or when your Users explicitly request that our Support modifies data in your Account. See Section 8 for more information on Customer-Supplied Content.

 

6. Limitations and Restrictions

6.1.  Content Restrictions. We respect the integrity of your Customer-Supplied Content stored on our Platform, however, your Customer-Supplied Content must comply with legal requirements. Our system only hosts content that aligns with the law and our policies. Your Account shouldn’t be used by any User to publish or process any Customer-Supplied Content that: (i) is unlawful or encourages people to engage in anything unlawful; (ii) contains a virus or any other similar programs or software which may damage the operation of Plytix’s or anyone else’s computer; (iii) violates the rights or breaks the patent, copyright, or any other intellectual property rights of any party; or (iv) is abusive, illegal or, threatening. You understand and agree that Plytix reserves the right to edit, modify or remove any of your content hosted on our Platform for breaking any of these standards. Your Customer-Supplied Content must be true and accurate at all times, and you will need to make updates as soon as possible.

6.2.  Use Restrictions. You will make sure that you or any of your Users don’t (i) use the Platform or Services for any illegal purpose; (ii) resell, distribute, or sublicense the Platform or Services; (iii) use the Platform or Services for the benefit of anyone other than you or your Users; (iii) use the Platform or Services to build or research a competing product or service; (iv) interfere with, impair, or disrupt the Platform or Services and related Plytix systems; (v) introduce any virus or programming routine which is intended to disrupt or interrupt the use of the Platform, Services, or Plytix’s systems; (vi) modify or create derivative works based on the Platform or Services; (vii) reverse engineer or otherwise conduct research into the internal operations of the Platform; or (viii) use the Platform in any way that goes around the features or functionality of your Subscription Plan.

 

7. Data

7.1.  Analytics; Anonymous Data. You agree that we can monitor and collect your and your Users’ use of the Platform. That way we can use that data and related information for the following reasons: (i) to study and improve the Platform and Services, (ii) to facilitate the provision of updates, (iii) product support, (iv) and to troubleshoot and provide customer support services. Some of this data may be Anonymous Data. All Anonymous Data is our exclusive property, and we may use it for general business purposes, but will not be shared or sold to any third parties.

8. Customer-Supplied Content and Data 

8.1. Customer-Supplied Content. Your Customer-Supplied Content may only be used by you, and only disclosed to others by you. This can be done through a variety of functionalities available in the Platform. Plytix personnel can at all times access and view Customer-Supplied Content for purposes of troubleshooting and otherwise as necessary to provide the Services to you.

All use and disclosures of Customer-Supplied Content are subject to the terms and conditions of the Privacy Policy.

8.2. Customer-Supplied Analytics Data. 

8.2.1. Reseller. If you are a Reseller and have connected your Google Analytics account with the Platform, Analytics Data is collected from Google Analytics. This Analytics Data is collected from you automatically. Your Analytics Data will be available in your Account for your benefit, but may also be disclosed to Verified Brands. Only Analytics Data pertaining to products produced by a Verified Brand may be disclosed and will only be disclosed to that particular Verified Brand. Your Analytics Data may be disclosed to Brands associated with the applicable products, except if you as a Reseller are on a Paid Subscription Plan, in which case you have the option to opt-out of sharing of Analytics Data.

8.2.2. Verified Brands. If you are a Verified Brand and have connected your Google Analytics account with the Platform, Analytics Data is collected from Google Analytics. This Analytics Data is collected from you automatically. Your Analytics Data will be available in your Account for your benefit. Analytics Data pertaining to products produced by you may also be collected from Resellers of your products and be available in your Account for your benefit. Your Analytics Data will not be disclosed to any other Verified Brands or Resellers on the Platform.

All use and disclosures of Analytics Data are subject to the terms and conditions of the Privacy Policy.

 

Payment

9. Fees

9.1.  Fees and Taxes. You will pay the fees determined by the Payment Terms. Fees and other charges described in any Subscription Plan do not include federal, local, foreign, or similar transaction taxes (“Taxes”). All taxes are your responsibility and will be paid by you. If we pay Taxes on your behalf, we will invoice you for these Taxes. You will reimburse us for the amount requested.

9.2.  Payments. The payment process we have depends on the billing cycle you choose. You may choose to pay on a monthly or a yearly basis. If your Subscription Plan is based on a monthly payment plan, we invoice monthly and your payment is due within 15 days from that invoice. For the yearly payment plan, we invoice every 12 months, and your payment is due within 30 days of the invoice date. For any other invoice period (like 6 months or 2 years), your payment is due within 30 days. If you don’t pay your invoice within that time period, we will send you four payment notices before we suspend your Account. 

9.3.  Non-Cancelable and Non-Refundable. Payments are non-cancelable and non-refundable. However, if you cancel your Paid Subscription Plan, you will still have access to the modules that you paid for until the end of the period you already paid for.

 

Liability

10. Indemnification

10.1.  By Customer. You also agree to indemnify and hold us harmless from any losses, damages, judgments, fines, and costs, including legal fees and expenses, in connection with any claims arising out of or relating to (i) your Customer-Supplied Content or Analytics Data; (ii) your use of the Platform or Services; (iii) your violation of any laws or regulations; (iv) third-party claims that you or someone using your password did something that, if true, would violate any terms of the Agreement; (v) any misrepresentations made by you; or (vi) a breach of any representations or warranties you’ve made to us.

10.2. Procedure. We will notify you in writing within thirty (30) days of becoming aware of any indemnifiable claim; give you sole control of the defense or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You will not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.

 

11. Representations and Disclaimer

11.1.  Mutual Representations and Warranties. Both Parties represent and warrant that: (i) the organization is a valid and existing organization that has the right to enter into this Agreement; (ii) each organization has gone through the necessary processes (like getting the necessary authority within the organization) to be able to enter into this Agreement; and (iii) the organization has the power and authority to fulfill its obligations and grant the rights stated in this Agreement.

11.2.  Customer Representations and Warranties. The Customer represents and warrants that they will comply with all laws related to receiving and using the Platform and Services.

11.3.  Plytix Representations and Warranties. Plytix represents and warrants that during the Term the Platform will work as described in the Documentation.

11.4.  Disclaimer. Our Platform and Services are provided “as is” and “as available” without any warranties or representations. This includes, but isn’t limited to, warranties of merchantability and fitness for a particular purpose, data loss, merchantability, or non-infringement, or any warranties with respect to the accuracy, reliability, or availability of any content or information made available in or through the Services. Since Customers use the Services for a variety of reasons, we can’t guarantee that it will meet your specific needs. Plytix does not warrant that use of the Platform will be error-free or uninterrupted.

 

12. Limitation of Liability

12.1. Within the extent permitted by law, you acknowledge and agree that (i) you assume full responsibility for any loss that results from your use of the Services, including any downloads from the Site; (ii) we and our team won’t be liable for any consequential, indirect, incidental punitive, special, or exemplary damages, including any loss of data, profits, revenues, business opportunities, goodwill, or anticipated savings under any circumstances, even if they’re based on negligence or we’ve been advised of the possibility of those damages; and (iii) in any calendar month, the total liability of Plytix and our third-party providers, licensors, distributors, or suppliers to you arising out of or relating to the Agreement—whether in contract, tort (including negligence), breach of statutory duty, or otherwise—will be no more than what you paid us for the Services in the preceding 6 months. You won’t be able to take any action regarding this Agreement after one (1) year.

To be clear, in no instance will we or our team be liable for any losses or damages you suffer if you use the Services in violation of these Terms, regardless of whether we terminate or suspend your Account due to this violation.

 

13. Confidentiality

13.1. Confidentiality is outlined as the following unless stated otherwise in the Privacy Policy:

13.1.1.  Limitations. Neither Party will use the other Party’s Confidential Information during the Term, except as stated in this Agreement or in the Privacy Policy. Each Party will trust that the other Party’s Confidential Information is protected in a manner that is no less restrictive than the manner in which they protect their own confidential materials. Each Party agrees not to disclose the other Party’s Confidential Information to anyone other than its employees, confidential advisors, or subcontractors who are also bound by confidentiality obligations that are equally or more restrictive as those in this Agreement. The confidentiality obligations in this section will survive for as long as this information meets the definition of Confidential Information.

13.1.2.  Required Disclosures. If a Party is required to disclose the other Party’s Confidential Information in the case of subpoena, court process, or other applicable law, this Party may do so only to the extent required by law. They must first notify the other Party and give the other Party a reasonable opportunity to contest the disclosure of their Confidential Information.

13.1.3.  Actions Upon Termination. When this Agreement is terminated, the disclosing Party will request that the receiving Party will either: (i) return all Confidential Information of the disclosing Party provided during the Term and all copies the receiving Party has; or (ii) destroy all Confidential Information provided during the Term and all copies the receiving Party has. However, nothing in this Agreement can require that a Party remove or delete the other Party’s Confidential Information from its long term backup storage, given that this information remains subject to the confidentiality obligations of this Agreement. Given this, we may also retain any Confidential Information that consists of Customer-Supplied Content or Analytics Data shared with or provided by the Customer or Users to other users of the Platform. We may continue to display and provide this Customer-Supplied Content or Analytics Data to these other users.

 

14. Term, Termination, and Plan Changes for Paid Subscription Plans

14.1.  Term. The term begins upon accepting these Terms or on the date stated in a signed Master Hosted Services Agreement, and will continue for the period described in the Subscription Plan (the “Initial Term”). The term will automatically renew for the same time period as the last Subscription Plan (the “Renewal Term”). Pricing for the Renewal Term will be adjusted to reflect our pricing at that current time, unless otherwise agreed upon. The Initial Term plus any Renewal Terms is referred to as the “Term.” If you wish to cancel or make changes to your existing Paid Subscription Plan, you must provide a minimum of a ten (10) day notice before the Renewal Term begins. Upon cancellation of a Paid Subscription Plan, you’ll automatically be enrolled into the Free Subscription Plan when your existing term ends.

14.2.  Termination

14.2.1.  Either Party can terminate this Agreement or any Subscription Plan: (i) with ten (10) days’ notice to the other Party if the other Party breaks any part of this Agreement or Subscription Plan (and the issue remains through the end of those ten (10) days—meaning the Party hasn’t fixed the issue); or (ii) immediately, if the other Party declares bankruptcy or anything else related to their debts.

14.2.2. The Customer may terminate this Agreement or any Subscription Plan at any time, for any reason or no reason provided. However, the Customer is not entitled to any refund for what has already been paid.

14.2.3. Plytix may end this Agreement or any Subscription Plan without cause with sixty (60) days’ notice to Customer. If we end the Agreement or Subscription Plan without cause, no future fees will be due, and we will reimburse you for the rest of the period of the Subscription Plan that you haven’t used.

14.2.4.  Termination of this Agreement ends all open Subscription Plans. The termination of a specific Subscription Plan won’t automatically terminate this Agreement or any other open Subscription Plans.

14.2.5. In the case that you end a Paid Subscription Plan, you will have the rest of that period to use the features specific to that Paid Subscription Plan. This means if you paid for that period, you will be able to use it to the end of that period, regardless of if you ended that Paid Subscription Plan for the following period.

14.3.  Plan Changes

14.3.1. You can upgrade, downgrade, or terminate your Subscription Plan at any point of time you want without cause. You will have up until the point that your Subscription Plan has been officially renewed to do so.

14.3.2. With a Free Subscription Plan, you have the option to terminate your Account or upgrade your Subscription Plan to a Paid Subscription Plan. In order to fully terminate your Account from our system, you must contact our “Customer Success Team.”

14.3.3. With a Paid Subscription Plan you can (i) completely terminate your Account; (ii) change your Paid Subscription Plan to a Free Subscription Plan; or (iii) change your Paid Subscription Plan to a different Paid Subscription Plan with less or more functionalities. If you go from paid to free, you'll still have access to your data as long as your data doesn’t exceed the limits set forth in the Free Subscription Plan.

14.3.4 Upgrades and downgrades will be reflected in the “Plan Summary” found in the Platform in the admin section of your Account.

14.4.  Actions Upon Termination

14.4.1. Once a Paid Subscription Plan has been terminated, (i) we will end all Services described in the terminated Subscription Plan; (ii) your account will function as a Free Subscription Plan, unless you change your Subscription Plan to a different Paid Subscription Plan.

14.4.2.  Termination of a Subscription Plan or this Agreement does not eliminate your obligation to pay for Services you used before the termination. If your Subscription Plan is terminated before you have been able to use these Services, we will invoice you for the appropriate amount. Depending on the reason for termination, we won’t charge you for Services we did not provide.

14.5.  Survival. Sections 1 and 5-16 will survive any termination or expiration of this Agreement.

 

15. Disputes and Governing Law

15.1.  Arbitration. You agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this arbitration provision, and that you and Plytix are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision will survive any termination of the Agreement and/or the termination of your Subscription Plan. 

Each Party agrees to submit any and all disputes, claims, and controversies arising between the Parties to final and binding arbitration, which will be administered by the American Arbitration Association (“AAA”) in accordance with its rules then in effect. Any arbitration will be heard by three (3) independent and impartial arbitrators. Two arbitrators will be selected by the respective Parties, one by the claimant(s) and one by the respondent(s). The third arbitrator will be appointed by the two arbitrators (the ones chosen by both parties) or by the AAA if the two arbitrators cannot agree. The place of arbitration will be New York, New York. Arbitration proceedings shall be held in English. Any Party’s refusal or unreasonable delay to select an arbitrator will be considered a material breach of this Agreement. The arbitrators will have the authority to grant any equitable and legal remedies that would be available in any judicial proceeding intended to resolve a dispute. However, either Party is entitled to bring an action seeking injunctive relief in any court of competent jurisdiction. The award determined in an arbitration will be final and non-appealable. Judgment on the award may be entered in any court with jurisdiction. Each of the Parties will keep the proceedings and any and all transcripts, documents, and all other non-public information produced or disclosed in connection with any arbitration confidential.

15.2.  Matters Not Requiring Arbitration. However, the Parties agree that Plytix may bring suit in court for the following: (i) enjoin infringement or other misuses of intellectual property or other proprietary rights; or (ii) defense and indemnification as stated in this Agreement.

 

General Information

16. Miscellaneous

16.1.  Publicity. Unless otherwise agreed upon, you grant us the right to use your company name and logo as a reference for marketing or promotional purposes on our website and in other public or private communications with our existing or potential customers, subject to your standard trademark usage guidelines as provided to us. 

16.2.  Choice of Law; Jurisdiction. Except as stated in the arbitration clause, the laws of the State of New York will govern all disputes arising out of or relating to the Service and the Agreement, regardless of conflict of laws rules. Except as stated in the arbitration clause, the state and federal courts located in the city of New York will have exclusive jurisdiction and venue over any dispute arising out of or relating to the Service and the Agreement.

16.3.  Notice. We may give notice by means of electronic mail to Customer’s email address on record in Customer’s Account or by written communication sent by first-class mail or by courier service to Customer’s address on record in Customer’s Account. Such notice will be deemed to have been given upon the expiration of thirty-six (36) hours after mailing (if sent by first class mail) or sending by courier or twelve (12) hours after sending (if sent by email), or, if earlier, when received. Customers may give notice to Plytix by e-mail to help@plytix.com. Such notice will be deemed to have been given twelve (12) hours after sending, or, if earlier, when received. A Party may, by giving notice to the other Party, change its applicable address, email, or other contact information.

16.4.  Severability. The Agreement will be enforced to the fullest extent permitted under applicable law. If any provision of the Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted as best as possible to accomplish the goals of the original provision to the fullest extent permitted by law, and the remaining provisions of the Agreement will remain in effect.

16.5.  No Agency. No joint venture, partnership, employment, or agency relationship exists between you and Plytix as a result of this Agreement or use of the Services. Plytix will be considered an independent contractor to you at all times.

16.6.  No Waiver. Our failure to enforce any right or provision in this Agreement or any Subscription Plan will not constitute a waiver of such right or provision unless acknowledged and agreed to by us in writing.

16.7.  Compliance with Export Laws. The Platform may be subject to U.S. Export Control Laws and Regulations. Export laws are set up by the U.S. government to keep certain goods and services from reaching other countries, usually because of security concerns or trade agreements. None of the Platform may be downloaded or otherwise exported or re-exported in violation of U.S. Export Control Laws and Regulations and any other applicable export laws and regulations (collectively, “Export Control Laws”). Therefore, you agree that you won’t, directly or indirectly through a third party, allow the Platform to be accessed or generated from within, or distributed or sent to, any prohibited or embargoed country as mentioned in any Export Control Laws. In addition, you certify that neither you nor any person or entity you know to be directly involved with the use of the Services is designated on any U.S. government list of prohibited or restricted persons. You must notify Plytix immediately if there are any issues with these Export Control Laws.

16.8.  Force Majeure. Neither Party will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party, which may include denial-of-service attacks, a failure by a third party hosting provider or utility provider, strikes, shortages, riots, fires, acts of God, war, terrorism, and governmental action. This does not include cases when the Customer doesn’t pay.

16.9.  Assignment. You may not assign any of your rights under the Agreement to anyone else (with the exception of your affiliates). We may assign the Agreement and any of our rights and obligations hereunder to any other individual or entity at our discretion.

16.10.  Entire Agreement. This Agreement, together with any applicable Subscription Plans, makes up the entire agreement between the Customer and Plytix. The Agreement supersedes all prior or current negotiations, discussions, or agreements—written or oral—between the Parties. In the event of a conflict between the terms and conditions of these Terms and those of a Master Hosted Services Agreement, the provisions of the Master Hosted Services Agreement be used as a final decision. No amendment to or modification of this Agreement will be binding unless in writing and signed by an authorized representative of each Party.

 

Exhibit A

Service Levels

1. Service Levels.We will make all necessary efforts to ensure that the Platform has no less than 99.5% Uptime. “Uptime” means the time that the Platform is operational and available to communicate with the internet in our server location. Any exceptions to this are outlined in the section below.
2. Remedy. If the Uptime level isn’t provided during any month of the Term, the Customer’s sole remedy is to receive a credit as stated below. Credits may only be used towards future invoices from Plytix. The Customer won’t receive a cash refund of any kind, even if the Agreement ends before the use of all of the Customer’s credits.

3. Exceptions. This credit does not apply to the Uptime failure due to: (i) scheduled maintenance or downtime, (ii) any modifications of the Platform made by anyone other than Plytix; (iii) any violation of the Agreement by the Customer or their Users; (iv) any unavailability that cannot be reasonably recreated by Plytix; (v) the Customer’s failure to comply with the Platform’s Documentation; (vi) any third party software; (vii) the Public Circuit; (viii) failures due to (a) force majeure events; and/or (b) the Customer’s or their Users’ inability to access the Platform due to problems with their own technology or equipment, including internet connection.

 

Support Exhibit

1. Support Services.

Support services consist of (i) Account Management; and (ii) Error Correction.

2. Account Management.

We will assign a Customer Success Manager to serve as your point of contact. The Customer Success Manager will be available to answer your questions and give advice on how to get the most value from our Platform. Contacts, that have permission from the Customer, may contact the Customer Success Manager via email and phone during our Support Hours.

3. Error Correction.

All Errors can be reported to us by emailing help@plytix.com. We will make all necessary efforts to correct any Error reported by Customer. The Error will be assigned a priority level. We will respond to each priority level Error as described in the section below.

Priority 1 Errors – We will (i) provide an Initial Response within two (2) business hours; (ii) initiate Management Escalation immediately; and (iii) provide the Customer with a Status Update within two (2) business hours if we can’t resolve the Error.

Priority 2 Errors – We will (i) provide an Initial Response within four (4) business hours; (ii) initiate Management Escalation within twelve (12) business hours; (iii) provide the Customer with a Status Update within twenty-four (24) business hours if we can’t resolve the Error.

Priority 3 Errors – We will (i) provide an Initial Response within one (1) business day; (ii) initiate Management Escalation within three (3) business days; (iii) provide the Customer with a Status Update within three (3) business days if we can’t resolve the Error.

If we believe that a problem reported by the Customer isn’t due to an Error in the Platform, we will notify the Customer. At that time, the Customer can (a) instruct us to continue with investigating the problem at the Customer’s expense as stated below; or (b) instruct us that the Customer doesn’t want the problem investigated at their expense.

If the Customer requests that we continue investigating the problem at their expense, and we determine that the problem was not due to an Error, the Customer will pay us. They will be charged our standard consulting rates for all work performed in connection with the investigation.

The Customer isn’t liable for (a) investigating or repairing the problem that comes from Errors in the Platform; or (b) work performed after Customer has notified us that they no longer want to continue investigating the problem (this notice becomes active when Plytix actually receives it).

If the Customer instructs us that they don’t want the problem investigated because of the expense or effort needed from the Customer’s end, we will not be held liable if we decide not to investigate the error.

If the Customer requests that we continue to investigate the problem at the Customer’s expense, and we determine that the problem was due to an Error, then we will be responsible for the cost of any of that work.

4. Exclusions.

We have no obligation to support or provide maintenance in the case of: (i) altered or damaged software by a party other than Plytix; (ii) problems with the Platform caused by the Customer’s negligence, abuse, or unauthorized use of Platform (other than as specified in the Documentation); or (iii) other causes outside of our control. We will not be liable for any changes in the Customer’s hardware or software systems that may be necessary to use the Platform due to a Fix, Workaround, or maintenance.

5. Definitions.

“Error” means a Priority 1 Error, Priority 2 Error, and Priority 3 Error.

“Fix” means updates, modifications, alterations, or corrections made to the Platform with the intent to resolve an Error.

“Initial Response” means the first contact by a Plytix support representative after the incident has been logged and a ticket generated.

“Management Escalation” means, if the initial Workaround or Fix does not resolve the Error, Plytix’s management will be notified that the Error has been reported and steps are being taken to correct this Error. 

“Priority 1 Error” means an Error that makes the Platform completely inoperative. For example the Customer or their Users cannot access the Service due to unplanned service downtime.

“Priority 2 Error” means the Customer or their Users can access the Platform, however, one or more significant features are unavailable.

“Priority 3 Error” means any other error that does not prevent the Customer or their Users from accessing a significant feature of the Platform.

“Public Circuit” means the third party provided circuits, overland and/or submarine cabling, and other connectivity infrastructure. The connectivity begins from a point immediately after the ingress/egress router at the Customer’s site to the point immediately before the ingress/egress router at Plytix’s facility to host our software.

“Status Update” means if the initial Workaround or Fix cannot resolve the Error, notification of the Customer regarding the progress of the Workaround or Fix.

“Support Hours” are from 3am to 8pm EST (Eastern Standard Time) Monday through Friday.

“Upgrades” means, other than routine Fixes and updates, additional software added to the Platform that provides new functionalities or modules.

“Workaround” means a change in the procedures followed or data supplied by the Customer to avoid an Error without substantially impairing the Customer’s use of the Platform.