PlexTrac, Inc.

Commercial Terms of Use

Last Updated: 01.29.2025

These Commercial Terms of Use (the “MSA”) is effective as of the date indicated on the first Order Form or upon the date of acceptance via electronic means, whichever is earlier, (“Effective Date”) and is entered into by and between PlexTrac, Inc., a Delaware corporation, having its principal place of business at 816 W Bannock St, Suite 400, Boise, ID 83702 (herein, “PlexTrac” or “Company”), and the individual or entity indicated on the Order Form as Customer (“Customer”). Capitalized terms have the definitions set forth herein. Customer and PlexTrac may each be referred to individually as a “Party” or collectively as the “Parties”.

1. Definitions. 

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

“Agreement” means this MSA together with each and all Order Forms.

“Customer Data” means the data, records, and other information owned by Customer and provided to PlexTrac under this Agreement.

“Documentation” means technical, instructional, or usage information provided by PlexTrac to Customer, expressly excluding any marketing materials and sales materials.

“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.

“Law” means any statute, law, ordinance, regulation, rule, code, order, common law, judgment, or other binding requirement of any federal, state, local, or foreign government as applicable to each Party.

“Loss” or “Losses” means all losses, damages, deficiencies, 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.

“Offerings” means any products, services, interfaces, content, or other materials made available or provided by PlexTrac to Customer in whole or in part including, but not limited to, the Software, Services, user interfaces, and other features.

“Order Form” means an agreement issued by PlexTrac substantially titled “Order Form” which references and incorporates the terms and conditions of this MSA and sets forth certain commercial terms and product and/or service orders which is signed by both PlexTrac and Customer.  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 MSA.

“Permitted Use” means use of the Offerings and Documentation by an authorized User for the benefit of Customer in the ordinary course of its internal business operations as permitted by this Agreement.

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

“Procurement Agent” means the individual or entity designated by Customer as its procurement agent for the purpose of binding Customer to certain terms under this Agreement including, but not limited to, resellers, distributors, and vendor managers.

“Platform Update” means any update, upgrade, release, or other adaptation or modification of the Offerings,  that PlexTrac 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, components, or efficiency, of the Offerings.

“Purchase Order” means a document issued by Customer or Customer’s Procurement Agent which is substantially titled “purchase order” and which contains certain requests for Customer to purchase Services fromPlexTrac.

“Quote” means the document issued by PlexTrac which confirms certain pricing, unit count, and product and/or service information from a Purchase Order. Unsigned Order Forms may be used by PlexTrac as Quotes.

“Representatives” means a Party’s employees, officers, consultants, agents, and contractors.

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

“Software” means the executable, object code version of PlexTrac’s software-as-a-service platform, any Platform Updates, and any accompanying materials made available to Customer pursuant to this Agreement.

“User” means an individual natural person who is granted access to the Offerings purchased by Customer by either Customer or by PlexTrac at the direction of Customer.

2. PlexTrac Services.
   • Generally; Security. PlexTrac shall provide the Offerings ordered by Customer to Customer pursuant to this Agreement. Offerings may contain technological measures designed to prevent unauthorized or illegal use. Customer acknowledges and agrees that: (a) PlexTrac may use these and other lawful measures to verify Customer’s compliance with the terms of this Agreement and enforce PlexTrac’s rights, in and to the Software; (b) PlexTrac may deny access to and/or use of the Offerings on written notice to Customer if PlexTrac, in its reasonable discretion, believes that person’s use of the Offerings would violate this Agreement, regardless of whether that person is a permitted User; (c) PlexTrac may collect, maintain, process and use diagnostic, technical, usage and related information, including information about Customer’s computers, systems and software, that PlexTrac may gather periodically to improve the performance of the Software or develop Platform Updates; and (d) where necessary, Customer shall reasonably cooperate with PlexTrac for the implementation of Platform Updates.

3. Access, License, and Use Restrictions. 
   • Generally. Subject to the terms of this Agreement, PlexTrac grants to Customer, for the Term, the non-exclusive, non-sublicensable, non-assignable, and non-transferable right to access and use the Software and/or Services in the quantity of Users and of the type as set forth in the applicable Order Form subject, at all times, to the number of permitted Users and in accordance with the Documentation.  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. At all times, ownership of the Offerings  remains the sole and exclusive property of PlexTrac. PlexTrac may, from time to time, provide Platform Updates. Platform Updates are at no additional charge to Customer. Customer retains all rights in and to Customer Data except that Customer grants such rights to PlexTrac as necessary to perform under this Agreement and in accordance with this Agreement.
   • Restrictions. Except as expressly permitted herein, Customer shall not: i) copy in whole or in part, modify, adapt, or otherwise prepare derivative works of the Offerings or attempt to recompile, reverse engineer or disassemble the Offerings; ii) rent, lease, lend, sell, sublicense, distribute, transfer, or otherwise make available the Offerings to any third party; iii) bypass or breach any security device or protection contained in the Offerings; iv) 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; v) use the Software for: (a) benchmarking or competitive analysis; (b) developing, using, or providing a competing product or service; or (c) any other purpose that is to PlexTrac’s detriment or commercial disadvantage; vi) use the Offerings 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 vii) 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. Customer may not share credentials between Users nor attempt to or actually circumvent any in-built restrictions of the Offerings (i.e. anti-reverse engineering technology). Where Customer orders templates, Customer is limited to four template revisions in each year of the applicable Order Form’s term.

4. Fees and Payment.
   • Fees. All fees and payment terms are set forth on the applicable Order Form and Customer shall pay all such fees in accordance with this Agreement. If any amount is not paid when due, PlexTrac shall be entitled to: a) recover from Customer the costs and expenses incurred in connection with collecting the same (including without limitation costs of enforcement and reasonable attorneys’ fees), b) impose a late charge of 1.5% per month the fees are overdue, c) suspend access to the Services and/or Software (so long as PlexTrac first informs Customer of the late payment), and d) take any other action permitted by applicable Law or this Agreement.  Fees are due in United States Dollar (USD). Fees exclude taxes. Taxes – expressly excluding taxes based on PlexTrac’s revenue – will, as applicable, will be added to each invoice to be paid by Customer. Except as expressly stated in the applicable Order Form, fees are due 30 calendar days from Customer’s receipt of PlexTrac’s invoice.
   • Purchase Orders. Only if Customer is purchasing via a Procurement Agent: From time to time, Customer may designate a Procurement Agent. A third party shall be deemed designated as a Procurement Agent and thereby bind Customer when: a) such third party issues a Purchase Order on behalf of or which identifies Customer, b) PlexTrac issues a Quote to the Procurement Agent, c) PlexTrac issues access credentials for the Offerings to Customer, and d) Customer accesses the Offerings. In such case, the Quote issued by PlexTrac shall be binding upon Customer and such Quote shall have the same effect as an Order Form and be deemed an Order Form under this Agreement.

5. Confidentiality.
   • Confidential Information and Exclusions. Each Party (a “Disclosing Party“) may disclose or make available Confidential Information to the other Party (the “Receiving Party“). Except as otherwise provided in this section Confidentiality, “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 PlexTrac; and (b) the financial terms of this Agreement are the Confidential Information of each of the Parties. 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 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.
   • Protection of Confidential Information. As a condition to being provided with any Confidential Information, the Receiving Party shall: i) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under this Agreement; ii) except as expressly permitted under the terms herein, not disclose Confidential Information other than to its Representatives who: (a) 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; (b) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations; and (c) are bound by confidentiality obligations at least as protective of the Confidential Information as the terms set forth herein; iii) 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; iv) 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 iv) ensure its Representatives’ compliance with and be responsible for any of its Representatives’ non-compliance with the requirements of this Section Confidentiality.
   • 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 as required herein, 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.
   • Intellectual Property Ownership. Customer acknowledges and agrees that: i) PlexTrac (and/or its licensors and suppliers, as applicable) 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 the Offerings and any improvements, modifications, and derivatives thereof/to, regardless of inventorship or authorship and ii) the Offerings are protected by various Intellectual Property Rights, and its copies are licensed in a limited fashion (not sold) to Customer by PlexTrac pursuant to this Agreement. PlexTrac shall be and is the sole and exclusive owner of any and all suggestions, improvements, new features, and other such recommendations and updates with respect to the Offerings – expressly excluding Customer’s Confidential Information and Customer Data – (collectively, “Improvements”) and Customer shall have no recourse to the same.
   • Customer Cooperation and Notice of Infringement. During the Term, Customer shall: i) take all commercially reasonable steps to safeguard PlexTrac’s Intellectual Property Rights from infringement, misappropriation, theft, misuse or unauthorized access; ii) promptly notify PlexTrac in writing if Customer becomes aware of: (i) any actual or suspected infringement, misappropriation or other violation of PlexTrac’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; iii) at PlexTrac’s sole expense, reasonably cooperate with, and assist PlexTrac in the conduct of any Action by PlexTrac to prevent or abate any actual or threatened infringement, misappropriation or violation of PlexTrac’s Intellectual Property Rights

7. Representations and Warranties.
   • Mutual Representations and Warranties. Each Party represents, warrants and covenants to the other Party that: i) 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; ii) 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; and iii) it shall comply with all applicable Laws.
   • PlexTrac Warranty.  PlexTrac represents and warrants that: (i) the Software will contain the functions and perform substantially as described in the applicable Order Form; and (ii) PlexTrac shall deliver the Services in compliance with all applicable laws and regulations. PlexTrac’s only liability, and Customer’s exclusive remedy, for any breach of the warranty in (i) is that, if reported to PlexTrac in writing, PlexTrac will promptly correct the non-conformity. 
   • DISCLAIMER OF WARRANTIES. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, PLEXTRAC PRODUCTS AND SERVICES, INCLUDING, BUT NOT LIMITED TO, THE SOFTWARE, 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.
   • PlexTrac Indemnification. PlexTrac 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  excludes any claims arising from: i) Customer Data; ii) Customer’s use of the Software in combination with any technology, equipment, software or service not provided, recommended, specified or furnished by PlexTrac; iii) Customer’s modification of the Software or use of the Software in a manner for which it was not designated or permitted; iii) Customer’s continued use of the Software after PlexTrac’s notice to Customer of such activity’s alleged or actual infringement, misappropriation or other violation of a third party’s rights; iv) 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 PlexTrac’s instructions; v) events or circumstances outside of PlexTrac’s commercially reasonable control (including any third-party hardware, software, or system bugs, defects, or malfunctions); or vi) Third-Party Claims or Losses for which Customer is obligated to indemnify PlexTrac.
   • Customer Indemnification. Customer shall indemnify, defend, and hold harmless PlexTrac and its officers, directors, and employees (the “PlexTrac Indemnitees“) from and against any and all Losses incurred by PlexTrac Indemnitees from any third-party Action arising from or relating to: 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 PlexTrac in this Agreement, the Order Form or otherwise in writing; b) any breach by Customer of any representation, warranty, obligation under this Agreement, or 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.
   • 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. 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. Indemnitee’s failure to perform any obligations under this provision will not relieve Indemnitor of its obligations underthis section Indemnification, except to the extent that Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure.
   • Mitigation. If the Software or Services, are, or in PlexTrac’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, PlexTrac may, at its option and sole cost and expense: i) obtain the right for Customer to continue to use the Software materially as contemplated by this Agreement; ii) 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 iii) if, after PlexTrac’s exercise of commercially reasonable efforts, neither of the remedies set forth in the above are reasonably available to PlexTrac, 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: (a) Customer shall immediately cease all use of the Software immediately on receipt of Customer’s notice; and (b) provided that Customer fully complies with its post-termination obligations set forth in herein, PlexTrac 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.
   • SOLE REMEDY. THIS SECTION INDEMNIFICATION SETS FORTH CUSTOMER’S SOLE REMEDIES AND PLEXTRAC’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.
   • EXCLUSION OF DAMAGES. EXCEPT FOR FRAUD, GROSS NEGLIGENCE, AND WILLFUL MISCONDUCT,  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.
   • CAP ON MONETARY LIABILITY. EXCEPT FOR FEES DUE HEREUNDER, FRAUD, GROSS NEGLIGENCE, OR WILFUL MISCONDUCT IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHER PARTY RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID TO PLEXTRAC ON A FINAL, NON-REFUNDABLE BASIS UNDER THIS AGREEMENT DURING THE IMMEDIATELY PRECEDING 12 MONTHS PRIOR TO THE DATE OF THE ACTION GIVING RISE TO SUCH LIABILITY. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

10. Term and Termination.
    • Term. The term of this MSA commences as of the Effective Date and continues until the termination or expiration of all Order Forms. Each Order Form becomes effective on the latest signature in time on such Order Form and endures for the period set forth on the Order Form, until each is terminated (as provided in this Agreement) or expires (“Initial Term“). At the expiration of the Initial Term, each Order Form (unless otherwise indicated on the Order Form) will automatically renew for successive periods of one year (each a “Renewal Term”, together with the “Initial Term” shall be the “Term”) on the same terms and conditions unless one party gives the other notice of its intent not to renew the applicable Order Form at least 30 days prior to the end of the applicable term. If such notice is properly provided, the Order Form shall expire at the end of the applicable term. PlexTrac reserves the right to increase the fees up to 5% per year, not to exceed once per calendar year.
    • Termination. This Agreement may be terminated as follows: i) by PlexTrac, effective on written notice to Customer, if Customer fails to pay any amount when due under this Agreement (“Payment Failure“); ii) by either Party, effective on written notice to the other Party, if the other Party materially breaches this Agreement and such breach: (a) is incapable of cure; or (b) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice including a reasonably detailed description of the breach. iii) Upon written notice by PlexTrac, effective immediately, if Customer: (a) is dissolved or liquidated; (b) becomes insolvent or is generally unable to pay its debts; (c) becomes the subject of any voluntary or involuntary bankruptcy proceeding under any valid bankruptcy or insolvency Law; (d) makes a general assignment for the benefit of its creditors; or (e) applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property.
    • 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 Offerings; (B) within 10 days destroy and permanently erase from all devices and systems Customer directly or indirectly controls, the Offerings, Documentation, and PlexTrac’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 PlexTrac that it has complied with the requirements of this section; and (D) no later than 15 days after the expiration or termination of this Agreement, pay to PlexTrac all amounts payable by Customer under this Agreement. Fees due hereunder are non-refundable and non-cancelable.

11. GENERAL.
    • Entire Agreement. This Agreement 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. This Agreement may not be changed orally, and may only be amended, superseded, canceled, or any terms hereof waived, only by an instrument in writing signed by each of the parties, or, in the case of a waiver, signed by the party against whom enforcement of such waiver is being sought.
    • Independent Contractors; Survival. 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. The Parties are solely independent contractors of each other. The provisions of this Agreement, where survival is necessary to give effect to their intent, shall survive termination or expiration of this Agreement including, but not limited to, obligations of payment, obligations of confidentiality, limitations of liability, exclusions of representations and/or warranties, and other such provisions.
    • 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 be given 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. Notice to Customer relating to routine or designated items (i.e. maintenance, updates, downtime, etc) may be delivered via the Software or Services and shall be effective upon delivery. Notice to PlexTrac requires an electronic copy be sent to legal@plextrac.com.
    • 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 of 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 is null and void.
    • Export, Sanctions, and Government. Each Party 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 Offerings and shall not export, re-export or provide access to such items in violations of such export control laws. Customer shall not permit access to nor facilitate access of any individual or entity which is subject to sanctions from the government of any jurisdiction to which PlexTrac is subject including, but not limited, to the government of the United States of America and the Office of Foreign Asset Controls. For greater clarity, Customer shall not permit residents nor citizens of: Iran, Syria, North Korea, the Russian Federation, certain regions of Ukraine (including Crimea, Luhansk, and Donetsk), and Cuba. PlexTrac reserves the right to revoke and/or suspend access to any Users who represent a violation of this provision and, if PlexTrac knows or reasonably believes Customer to be in violation of this section, terminate this Agreement upon notice to Customer. Each of the Documentation and software components that constitute the Software (and Offerings as a whole) is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. If Customer is an agency of the US Government or any contractor therefore, Customer only receives those rights with respect to the Software and Documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government Customers and their contractors. If Customer is part of the United States Government, Customer only acquires such rights as set forth under DFAR 227.7202-3 or FAR FAR 12.211 as applicable.
    • Headings; Ambiguity; Severability; Conflict.  Headings are solely for convenience and do not convey any legal right, obligation, nor meaning. Ambiguity shall not be construed in favor of the drafting party. 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. The remaining provisions shall remain unaffected. In the event of a conflict between this MSA and an Order Form, the terms of the Order Form shall prevail.
    • Waiver; Force Majeure; Updates. 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. Notwithstanding the foregoing, PlexTrac reserves the right to modify this MSA for legal and compliance purposes upon notice to Customer (email and notice via the Services being expressly sufficient). Customer’s continued use or acceptance of the Services expressly constitutes an acceptance of such modification. Except for payment obligations, neither Party is liable for any failure or delay in performance due to any cause beyond its reasonable control which makes such performance impossible or impracticable.
    • Governing Law; Venue. 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. Each Party unconditionally waives its rights to a trial by jury in any legal action relating to this Agreement.
    • Equitable Relief; Prevailing Party. Customer acknowledges and agrees that a breach or by Customer of any of its obligations with respect to intellectual property, restrictions, or confidentiality contained within this Agreement would cause PlexTrac irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach, PlexTrac 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 PlexTrac at law, in equity, or otherwise. 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.
    • Insurance.  During the Term of this Agreement, and for the duration of its surviving obligations, PlexTrac 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. 

Prior Versions:

• 09.21.2023 – Commercial Terms of Use
• 06.02.2022 – Commercial Terms & Conditions