Commercial Terms of Use

PlexTrac, Inc.

Commercial Terms of Use

Last Updated: 09.21.2023

These Commercial Terms of Use (herein, “Terms of Use,” or alternatively, “Agreement”) govern your (the “Customer”) use of the Services. This Agreement is made and entered into between PlexTrac, Inc. (“PlexTrac,” or “Company”) and You – whether as an individual or on behalf of an entity – as of the date that You first accept the Terms of Use whether by: executing an Order Form that references this Agreement; checking or clicking a box indicating your acceptance with these terms; or by downloading, installing and/or utilizing the Software or Services. If you register for or receive a free trial of the Services (“Free Trial”), all applicable provisions of this Agreement will also govern your use. This Agreement is a legally binding contract between you and PlexTrac, Inc. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind that entity to this Agreement.

BY ACCEPTING THIS AGREEMENT, YOU AGREE TO ALL THE TERMS HEREIN. PlexTrac does not accept any changes, additions, or deletions to this Agreement; any such changes You make will not be accepted and will not be a part of this Agreement. If you do not accept the terms of this Agreement as-is, you must not access, download, install, use, or receive the Software or Services.

Your continued use or receipt of the Services shall represent your acceptance of and agreement to the then-current Terms of Use. You agree that you will either subscribe to receive notice of updates of this Agreement or frequently check the PlexTrac website for any revisions and updates.

Capitalized terms have the definitions set forth herein.

1. Definitions.

“Action” means a claim, cause of action, demand, arbitration, audit, notice of violation, proceeding, litigation, summons, subpoena, investigation or any civil, criminal, administrative, or other proceeding.

“Authorized User” means an individual provided login credentials to the software by Customer pursuant to a fully executed Order Form or otherwise authorized by Company.

“Business Day” means any day which commercial banks in Boise, Idaho are open for business.

“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

“Company” means PlexTrac, Inc., and its current and future subsidiaries, affiliates, successors and assigns.

“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, any arbitrator, court, or tribunal of competent jurisdiction.

“Loss” or “Losses” means all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of any kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.

“Maintenance Release” means any update, upgrade, release, or other adaptation or modification of the Software, that Company may provide to Customer from time to time during the Term, including, error corrections, enhancements, improvements, or other changes to the user interface, functionality, compatibility, performance, or efficiency, of the Software.

“Order Form” means an agreement pursuant to which Client purchases Services from Company, which references and is governed by this Agreement. Each reference to an Order Form herein shall mean such Order Form as governed by, and inclusive of the terms and conditions set forth in this Agreement.

“Permitted Use” means use of the Services, including Software and Documentation, by an Authorized User for the benefit of Customer in the ordinary course of its internal business operations.

“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, trust, association, or other entity.

“Representatives” means a Party’s employees, officers, consultants, agents, contractors & service providers.

“Services” means the services Company agrees to provide Client as identified on an Order Form.

“Software” means the executable, object code version of Company’s SaaS platform, any Maintenance Releases, and any accompanying materials provided to Customer pursuant to this Agreement.

“Term” means the stated term of the Agreement then in effect.

“Third-Party Materials” means all materials and information that are not proprietary to Company.

2. PlexTrac Services.

2.1 Services Provided. The Company shall provide the Services to Client pursuant to the terms and conditions herein.

2.2 Reserved.

2.3 Maintenance Releases. During the Term, Company will provide Customer with all Maintenance Releases at no additional charge. All Maintenance Releases are deemed Software. Customer will install all Maintenance Releases as soon as practicable after receipt.

2.4 Security & Privacy. The Software may contain technological measures designed to prevent unauthorized or illegal use. Customer acknowledges and agrees that: (a) Company may use these and other lawful measures to verify Customer’s compliance with the terms of this Agreement and enforce Company’s rights, in and to the Software; (b) Company may deny access to and/or use of the Software on written notice to Customer if Company, in its reasonable discretion, believes that person’s use of the Software would violate this Agreement, regardless of whether that person is an Authorized User; and (c) Company and its Representatives may collect, maintain, process and use diagnostic, technical, usage and related information, including information about Customer’s computers, systems and software, that Company may gather periodically to improve the performance of the Software or develop Maintenance Releases. This information will be treated in accordance with Company’s Product Privacy Policy, as amended from time to time, which can be viewed at: https://plextrac.com/legal/Product-Privacy/

3. Limited License.

3.1 License Grant. Subject to with the terms of this Agreement, Company grants to Customer a non-exclusive, non-sublicensable, and non-transferable (except in compliance with Section 15.5) license for the Term to access and use the Software and Services.

3.2 Open Source. The Software includes Open Source Components (https://app.plextrac.com/licenses) that are subject to an open source license agreement and approved by the Open Source Initiative (each, an “Open Source License”).

3.3. License Restrictions. Except as expressly permitted herein, Customer shall not:

(a) copy in whole or in part, modify, adapt, or otherwise prepare derivative works of the Software or attempt to recompile, reverse engineer or disassemble the Software;

(b) rent, lease, lend, sell, sublicense, distribute, transfer, or otherwise make available the Software to any third party;

(d) use the Software in any manner that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any Person, or violates any Law;

(e) use the Software for: (i) benchmarking or competitive analysis; (ii) developing, using, or providing a competing product or service; or (iii) any other purpose that is to Company’s detriment or commercial disadvantage;

(f) use the Software for the design, construction, maintenance, or operation of any hazardous environments, systems, or applications, any safety response systems or other safety-critical applications, or any other use in which the use or failure of the Software could lead to personal injury or severe physical or property damage; or

(g) use the Software other than for the Permitted Use or in any manner or for any purpose or application not expressly permitted by this Agreement.

4. Fees and Payment.

4.1 License Fees. All fees, payment terms and accepted methods of payment are set forth on the applicable Order Form.

4.2 Late Payment. If any amount is not paid when due, Company shall be entitled to recover from Client the costs and expenses incurred in connection with collecting the same (including without limitation costs of investigation and reasonable attorneys’ fees).

5. Confidentiality.

5.1 Confidential Information. Each Party (a “Disclosing Party“) may disclose or make available Confidential Information to the other Party (the “Receiving Party“). Subject to Section 5.2, “Confidential Information” means information in any form (whether oral, written, electronic or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, whether or not marked, designated or otherwise identified as “confidential.” Without limiting the foregoing: (a) the Software is Confidential Information of Company; and (b) the financial terms of this Agreement are the Confidential Information of each of the Parties.

5.2 Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate by documentary records: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party’s knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) the Receiving Party can demonstrate by documentary records, was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.

5.3 Protection of Confidential Information. As a condition to being provided with any Confidential Information, the Receiving Party shall:

(a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under this Agreement;

(b) except as expressly permitted under the terms herein, not disclose Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 5; and (iii) are bound by confidentiality obligations at least as protective of the Confidential Information as the terms set forth in this Section 5;

(c) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the same degree of care it uses to protect its confidential information and in no event less than a reasonable degree of care;

(d) promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and use commercially reasonable best efforts to prevent further unauthorized use or disclosure; and

(e) ensure its Representatives’ compliance with and be responsible for any of its Representatives’ non-compliance with the terms of this Section 5.

Notwithstanding any other provisions of this Agreement, the Receiving Party’s obligations under this Section 5 with respect to any Confidential Information that constitutes a trade secret under any applicable Law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under one or more such applicable Laws.

5.4 Compelled Disclosures. If the Receiving Party is compelled by applicable Law to disclose any Confidential Information, to the extent permitted by applicable Law, the Receiving Party will: (a) promptly and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy; and (b) provide reasonable assistance to the Disclosing Party in challenging such disclosure. If the Disclosing Party waives compliance or, after providing notice and assistance required under this Section 5.4, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party will disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose and, will use its best efforts to obtain assurances from the applicable court or presiding authority that such Confidential Information will be afforded confidential treatment.

6. Intellectual Property Rights.

6.1 Intellectual Property Ownership. Customer acknowledges and agrees that:

(a) Company (and/or its licensors and suppliers, as the case may be) is and shall be the sole and exclusive owner of all right, title, and interest (including without limitation all Intellectual Property Rights) in and to: (a) the Software; and (c) any improvements, modifications, and derivatives thereof/to, regardless of inventorship or authorship.

(b) The Software is protected by various Intellectual Property Rights, and its copies are licensed (not sold) to User by Company pursuant to this Agreement.

6.2 Customer Cooperation and Notice of Infringement. During the Term, Customer shall:

(a) take all commercially reasonable steps to safeguard Company’s Intellectual Property Rights from infringement, misappropriation, theft, misuse or unauthorized access;

(b) promptly notify Company in writing if Customer becomes aware of: (i) any actual or suspected infringement, misappropriation or other violation of Company’s Intellectual Property Rights in or relating to the Software; or (ii) any claim that the Software, in whole or in part, infringes, misappropriates or otherwise violates the Intellectual Property Rights or other rights of any Person; and;

(c) at Company’s sole expense, reasonably cooperate with, and assist Company in the conduct of any Action by Company to prevent or abate any actual or threatened infringement, misappropriation or violation of Company’s Intellectual Property Rights

6.3 No Implied Rights. Except for the limited rights and licenses expressly granted herein, nothing in this Agreement grants, by implication, waiver, estoppel or otherwise, to Customer or any third party any Intellectual Property Right, other right, title, or interest in or to any of the Software.

7. Representations and Warranties.

7.1 Mutual Representations and Warranties. Each Party represents, warrants and covenants to the other Party that:

(a) the execution of this Agreement by its signatory representative whose signature is set forth on the Order Form has been duly authorized by all necessary corporate or organizational action; and

(b) when executed and delivered by both Parties, this Agreement will constitute the legal, valid and binding obligation, enforceable against each Party in accordance with its terms.

7.2 Company Warranty. Company represents and warrants that: (i) the System will contain the functions and perform substantially as described in the applicable Order Form; and (ii) Company shall deliver the Services in compliance with all applicable laws and regulations. Company’s only liability, and Client’s exclusive remedy, for any breach of the warranty in (i) is that, if reported to Company in writing, Company will promptly correct the non-conformity.

7.3 DISCLAIMER OF WARRANTIES. EXCEPT AS SPECIFICALLY PROVIDED FOR IN SECTION 7.1, THE SOFTWARE, SYSTEM, ITS INTERFACES, ANY RELATED EQUIPMENT, THE SERVICES AND ANY MATERIALS ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR THOSE WARRANTIES ARISING FROM A COURSE OF PERFORMANCE, A COURSE OF DEALING OR TRADE USAGE.

8. Indemnification.

8.1 Company Indemnification. Company shall indemnify, defend, and hold harmless Customer and its officers, directors, and employees (the “Customer Indemnitees“) from and against any Losses incurred by Customer Indemnitees resulting from any third-party Action alleging that the Software or Product, infringes any third party’s Intellectual Property Rights. This Section 8.1 excludes any claims arising from:

(a) Customer Data,

(b) Customer’s use of the Software in combination with any technology, equipment, software or service not provided, recommended, specified or furnished by Company.

(c) Customer’s modification of the Software or use of the Software in a manner for which it was neither designated nor contemplated.

(d) Customer’s continued use of the Software after Company’s notice to Customer of such activity’s alleged or actual infringement, misappropriation or other violation of a third party’s rights.

(e) use of the Software or Documentation by Customer, Customer’s Representatives, or any third party that is contrary to the purpose, scope, or manner authorized by this Agreement, or any negligence, abuse, misuse or other manner contrary to Company’s instructions.

(f) events or circumstances outside of Company’s commercially reasonable control (including any third-party hardware, software, or system bugs, defects, or malfunctions); or

(g) Third-Party Claims or Losses for which Customer is obligated to indemnify Company pursuant to Section 8.2.

8.2 Customer Indemnification. Customer shall indemnify, defend, and hold harmless Company and its officers, directors, and employees (the “Company Indemnitees“) from and against any and all Losses incurred by the Company Indemnitees from any third-party Action by:

(a) use or combination of the Software by Customer or any of its Representatives with any installed, integrated, or combined hardware, software, system, network, service, that is neither provided nor authorized by Company in this Agreement, the Order Form or otherwise in writing; and

(b) any breach by Customer of any representation, warranty, obligation under this Agreement.

(c) any instance of gross negligence, abuse, misapplication, misuse or more culpable act or omission of Customer with respect to the Software or in connection with this Agreement; or

8.3 Indemnification Procedure. A Party shall promptly notify the other Party in writing of any Action which such Party believes it is entitled to be indemnified under this Section 8. The Party seeking indemnification (the “Indemnitee“) shall cooperate with the other Party (the “Indemnitor“) at the Indemnitor’s sole cost and expense. Indemnitor shall promptly assume control of defense and investigation of such Action and shall employ counsel reasonably acceptable to the Indemnitee, at the Indemnitor’s sole cost and expense. Indemnitee may participate in any proceedings at its own cost and expense with counsel of its own choosing. Indemnitor shall not settle any Action on any terms or in any manner that adversely affects the rights of Indemnitee without Indemnitee’s prior written consent, which shall not be unreasonably withheld. If Indemnitor fails or refuses to assume control of the defense of such Action, Indemnitee shall have the right, but no obligation, to defend against such Action, including settling such Action after giving notice to Indemnitor, on such terms as the Indemnitee may deem appropriate. Indemnitor’s failure to perform any obligations under this Section 8.3 will not relieve Indemnitor of its obligations under Section 8, except to the extent that Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure.

8.4 Mitigation. If the Software, is, or in Company’s opinion is likely to be, claimed to infringe, misappropriate or otherwise violate any third-party Intellectual Property Right, or if Customer’s use of the Software is enjoined or threatened to be enjoined, Company may, at its option and sole cost and expense:

(a) obtain the right for Customer to continue to use the Software materially as contemplated by this Agreement;

(b) modify or replace the Software, in whole or in part, in order to make the Software non-infringing, while providing materially equivalent features and functionality; all modified or replaced software will constitute Software under this Agreement; or

(c) if, after Company’s exercise of commercially reasonable efforts, neither of the remedies set forth in the above Sections 12.4(a) or (b) is reasonably available to Company, terminate this Agreement, in its entirety or with respect to the affected part or feature of the Software, effective immediately on written notice to Customer, in which event: (i) Customer shall immediately cease all use of the Software immediately on receipt of Customer’s notice; and (ii) provided that Customer fully complies with its post-termination obligations set forth in herein, Company shall promptly refund to Customer, a pro rata share of any fees prepaid by Customer for the future portion of the Term that would have remained but for such termination.

8.5 SOLE REMEDY. SECTION 8 SETS FORTH CUSTOMER’S SOLE REMEDIES AND COMPANY’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SOFTWARE OR DOCUMENTATION OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

9. Limitations of Liability.

9.1 EXCLUSION OF DAMAGES. EXCEPT FOR EITHER PARTIES’ OBLIGATIONS UNDER SECTION 8, IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER ANY LEGAL OR EQUITABLE THEORY FOR ANY: (a) INCREASED COSTS, DIMINUTION IN VALUE OR LOST REVENUES OR PROFITS, (b) LOSS OF GOODWILL OR REPUTATION, (c) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY LICENSED SOFTWARE OR OPEN SOURCE COMPONENTS, (d) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, BREACH OF DATA OR SYSTEM SECURITY, (e) COST OF REPLACEMENT, OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES – REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.

9.2 CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHER PARTY RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID TO COMPANY UNDER THIS AGREEMENT FOR TWELVE (12) MONTHS. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

10. Term and Termination.

10.1 Term. The term of this Agreement commences as of the Effective Date and continues for the period set forth on the Order Form, unless terminated earlier pursuant to any provision herein (“Initial Term“).

10.2 Renewal Increase. For each Additional Term beyond the Initial Term, the price of the Services under the License shall increase by five percent (5%) over the previous Term.

10.3 Termination. This Agreement may be terminated at any time:

(a) by Company, effective on written notice to Customer, if Customer fails to pay any amount when due under this Agreement (“Payment Failure“);

(b) by either Party, effective on written notice to the other Party, if the other Party materially breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice;

(c) Upon written notice by Company, effective immediately, if Customer: (i) is dissolved or liquidated; (ii) becomes insolvent or is generally unable to pay its debts; (iii) becomes the subject of any voluntary or involuntary bankruptcy proceeding under any valid bankruptcy or insolvency Law; (iv) makes a general assignment for the benefit of its creditors; or (v) applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property.

10.4 Effect of Termination or Expiration. On the expiration or termination of this Agreement, all rights, licenses and authorizations granted to Customer hereunder will immediately terminate and Customer will: (A) immediately cease all use of the Services; (B) within five (5) Business Days destroy and permanently erase from all devices and systems Customer directly or indirectly controls, the Software and Documentation and Company’s Confidential Information, including all documents, files, and tangible materials (including any partial or complete copies) containing, reflecting, incorporating, or based on any of the foregoing, whether or not modified or merged into other materials; (C) certify in writing to Company that it has complied with the requirements of this Section 10.4; and (D) no later than ten (10) business days after the expiration or termination of this Agreement, pay to Company all amounts payable by Customer under this Agreement.

10.5 Survival. The following Sections shall survive any expiration or termination of this Agreement: Sections 4 Fees and Payment; 5 Confidentiality, 6 Intellectual Property Rights; 8 Indemnification; 9 Limitations of Liability; 11 General; and this Section 10.5.

11. GENERAL.

11.1 Relationship of the Parties. Nothing contained in this Agreement shall create any agency, fiduciary, partnership, franchise, or joint venture relation between the Parties. No Party shall have the power to obligate or bind the other party in any manner whatsoever.

11.2 Public Announcements. Except as stated herein, neither party will make any announcements or statements to the public concerning the relationship between them or the transactions described herein without the prior written consent of the other party. Unless otherwise provided herein, neither party will use the other party’s name, trademark or logos without the prior written consent of the other party.

11.3 Notices. Any notice required or permitted under this Agreement shall be in writing to the Parties at the addresses set forth on the Order Form or at such other address as may begiven in writing to the other party in accordance with this Section and shall be deemed to have been received by the addressee if given by overnight courier service, or by registered mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail.

11.4 Entire Agreement. This Agreement and each Order Form constitutes the entire agreement of the Parties with respect to the subject matter and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, whether written or oral.

11.5 Assignment. This Agreement will bind and inure to the benefit of each Party’s permitted successors and assigns. Neither Party may assign this Agreement except upon the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer all or a substantial portion of such party’s assets or voting securities. Any attempt to transfer or assign this Agreement in violation of this Section 11.5 is null and void.

11.6 Export Regulation. Customer shall comply with all US export control laws and regulations, including the US Export Administration Act and its associated regulations, in its use of the Software and Services and shall not export, re-export or provide access to such items in violations of such export control laws.

11.7 Force Majeure. Except for payment obligations, neither Party is liable for any failure or delay in performance due to any cause beyond its reasonable control.

11.8 Amendment and Modification; Waiver. No amendment or modification of this Agreement is effective unless in writing and signed by an authorized representative of each Party. No failure by either Party in exercising any right under this Agreement will constitute a waiver of that right.

11.9 Severability. If any provision of this Agreement shall be adjudged by a court of competent jurisdiction to be unenforceable, illegal or invalid, said provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.

11.10 Governing Law & Forum. This Agreement, and any disputes arising from it, shall be construed according to the laws of the State of Idaho. The Parties agree to accept the exclusive jurisdiction and venue of the state and federal courts located in Ada County, Idaho for the adjudication of any dispute arising in connection with or related to this Agreement or the interpretation of this Agreement.

11.11 Waiver of Jury Trial. Each Party unconditionally waives its rights to a trial by jury in any legal action relating to this Agreement.

11.12 Equitable Relief. Customer acknowledges and agrees that a breach or by Customer of any of its obligations under Sections 2.4, 3.3, 5, and 6 of this Agreement would cause Company irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach, Company shall be entitled to equitable relief, including: a restraining order, injunction, specific performance, or any other form of equitable relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security, or prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available to Company at law, in equity, or otherwise.

11.12 Attorneys’ Fees. The prevailing Party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs from the non-prevailing Party.

11.13 Insurance. During the Term of this Agreement, and for the duration of its surviving obligations, Company will maintain insurance coverage (and not permit any gaps) at its sole expense in the following amounts: Comprehensive or Commercial General Liability – with a limit of not less than $1,000,000 per occurrence and not less than $2,000,000 in the annual aggregate, covering bodily injury, property damage liability, Contractual liability, Business Interruption of not less than 6 months of lost income, and $1,000,000 products/completed operations aggregate; Automobile Liability – including Owned, Hired & Non-Owned with coverage of $1,000,000 per occurrence; Professional Liability (Errors & Omissions) — coverage in the amount of at least $1,000,000 per occurrence and $5,000,000 in the annual aggregate; and Cyber/Privacy Liability – coverage in the amount of at least $5,000,000 containing coverage for data privacy and network security liability, Internet and electronic media liability, professional services liability, business interruption, cyber extortion, data and identity theft, Intellectual Property, expenses related to responding to a privacy event.