Production Monitoring Online Terms

These Master Terms of Service (“MTOS”), as well as the Third Party Terms, the Professional Services Terms (available at www.plex.com/support/prof-techservices-terms.html, and the applicable Order Form (which are expressly incorporated by reference), govern the agreement between Customer and Plex (collectively, the “Subscription Agreement”). Plex and Customer may be referred to individually as a “Party” and collectively as the “Parties”.

1. Definitions.

“Affiliate” means a company which is controlled, under common control or controlling a party or entity during the period of such control. For the purposes of the Subscription Agreement, “control” means ownership, directly or indirectly, of more than 50% of the voting securities of a party or entity.

“Authorized Location” means each location or facility in which Customer and/or its Affiliates operates and/or controls the entity, business or division identified in an Order Form for Users to access and/or use the Subscription Services and/or Software.

“Customer” means the entity named in an Order Form.

“Documentation” means Plex’s electronic and/or hardcopy user guides, help and training materials, and other documentation for the Services, which may be updated, amended or replaced by Plex from time to time.

“Law” means any local, state, national, administrative and/or foreign laws, treaties, regulations and/or orders applicable to a Party and/or the provision and/or use of the Services.

“Non-Plex Products” means any software and/or other products or services provided by, licensed to, or otherwise used by Customer (excluding Plex Property) that may be required for or otherwise used by Customer to interoperate with, enhance, or supplement the Services.

“Order Form” means any ordering document and all applicable attachments, for the purchase of Services, and executed by Plex and Customer and is attached to or otherwise incorporated by reference into this MTOS.

“Plex” means Plex Systems, Inc., a Delaware corporation with offices at 900 Tower Drive, Suite 1500, Troy, MI 48098.

“Plex Property” means all software and other copyrighted and proprietary products and materials provided by Plex including Third Party Services.

“Services” means, collectively, (a)(i) Plex’s proprietary web-based software platform and associated modules, components and any updates (“PLEX”); (ii) the applicable SLA (as defined in Section 2.4); and (iii) any and all Documentation related to PLEX (collectively, the “Subscription Services”); (b) other services (including all related Documentation), provided by Plex under an Order Form describing such services, and (c) any Software licensed by Plex to Customer.

“Software” means the on-premise software products listed on an applicable Order Form.

“Third Party Services” means any third party software provided to Customer by a party other than Plex and licensed or subscribed to by Plex for use in Plex’s provision of the Services to Customer. Third Party Services are supported by Plex.

“Third Party Terms” means the third party terms for the Software available at https://www.plex.com/pmterms-thirdparty.

2. Services:

2.1 Provision of the Services. Plex shall make the Services available pursuant to terms of the Subscription Agreement during the applicable Subscription Term to (a) Customer; and (b) each individual employee, consultant, contractor, customer, supplier and agent of Customer from an Authorized Location who is authorized by Customer to access and/or use the Subscription Services and/or Software during the Subscription Term and who has been supplied with a unique user identification and password by Customer or by Plex at Customer’s request (each, a “User”). If the Services will be made available to any Customer Affiliate(s) pursuant to the Subscription Agreement, then the term “Customer” shall also include such Customer Affiliate(s) identified in an Order Form. The Services made available under the Subscription Agreement do not include any implementation, professional, or technical services which Customer may purchase separately from Plex pursuant to the terms set forth in the Professional Services Terms and Conditions (“Professional Services Terms”) and a Work Order (as defined therein) describing such services (the “Professional Services”). Customer may incur additional fees for exceeding system limits applicable to certain Services.

2.2 Updates; Future Features and Functionality. Plex will make available to Customer and Users all updates and enhancements to the Subscription Services that Plex generally makes available to its customers. Customer agrees that the development, release, and timing of any features and/or functionality for the Services remains at Plex’s sole discretion and Customer’s purchase of the Services is not contingent or dependent on the delivery of any future functionality, features, or other services or products regardless of any communications about Plex’s plans, including any information on the Plex website or in any portal, presentation, product roadmap, proposal, press release, or public statement.

2.3 Controls, Policies and Procedures. Plex adheres to the internal controls, policies and procedures at least as effective as those set forth in Plex’s most recent SOC 1 Type II and SOC 2 Type II audit reports (or reports based on any succeeding analogous standards) (collectively, the “Plex Security Reports”). The Plex Security Reports will meet the relevant audit standards for issuing SOC I Type II reports and the Trust Service Principles for SOC 2 Type II reports (or such succeeding analogous standard). Upon Customer’s written request, Plex will promptly provide Customer with a copy of the most recent Plex Security Reports. The Plex Security Reports, and any analyses, reports and/or similar information related to or derived from such reports, are Plex’s Confidential Information (as defined in Section 5.1).

2.5 Preview Services. From time to time, Plex may notify, invite, or otherwise make available to Customer, at Customer’s option, certain Preview Services for Customer’s evaluation at no additional charge. “Preview Services” means all services or functionality designated as preview, beta, pilot, demo, limited availability, joint development, sandbox/testing, developer preview, non-production, evaluation, or similarly described “pre” or early-release software, services, and/or functionality. Customer, in its discretion, may elect to try such Preview Services as such services are intended for evaluation purposes, are not for production use and are not supported. Customer may be required to agree to additional terms as a condition to accessing or using the Preview Services. Preview Services are provided on an “AS IS” basis (without any express or implied representations, warranties or indemnities) and not considered “Services” under the Subscription Agreement; provided, however, that all restrictions concerning the Services and Plex’s reservation of rights and Customer obligations, shall apply equally to Customer’s use of any Preview Services. The time period for which a Preview Service is made available for access or use by Customer may vary and, unless otherwise stated, any Preview Services trial period will expire upon the earlier of one (1) year from the trial start date or the date that a version of the Preview Services becomes generally commercially available without an evaluation designation. Plex may discontinue any or all Preview Services at any time in Plex’s sole discretion and may never make them generally available. Plex will have no liability for any harm, damage, or claim arising out of or in connection with any Preview Service.

2.6 Plex Personnel. Except as otherwise specified in the Subscription Agreement, Plex will be responsible for the performance of its personnel (including its subcontractors) and their compliance with Plex’s obligations under the Subscription Agreement.

3. Fees.

3.1 Invoice and Payment. All fees for the Services ordered by Customer pursuant to an Order Form (collectively, “Fees”) are, unless otherwise stated in the applicable Order Form, quoted and payable in United States dollars. Unless otherwise stated in the applicable Order Form, all invoiced Fees shall be due and payable within thirty (30) days of the invoice date (except for any disputed Fees then subject to a Billing Dispute under Section 3.5). Customer shall provide Plex with complete and accurate billing and contact information including a valid email address for receipt of invoices. Except as expressly stated in the Subscription Agreement, payment obligations are non-cancelable, all Fees paid are non-refundable, and Services purchased cannot be decreased during the relevant Subscription Term.

3.2 Overdue Payments. Without limiting the rights and remedies available to Plex under the Subscription Agreement or by Law and unless otherwise stated in an applicable Order Form, any Fees not paid by Customer (except for any disputed Fees then subject to a Billing Dispute under Section 3.5) within thirty (30) days of the invoice date shall accrue late charges at the rate of one and one-half percent (1.5%) of the outstanding balance per month, or the maximum rate permitted by Law, whichever is lower, from the date such payment was due until the date paid, plus all reasonable expenses and fees of collection (including attorneys’ fees, expenses, and court and administrative costs).

3.3 Taxes. All Fees are exclusive of federal, state and local sales, value-added taxes, goods and services taxes, use, excise, service, transaction, gross receipts or similar taxes imposed on the Services (collectively, “Taxes”), any and all of which Customer agrees to pay, excluding taxes on Plex’s income, property, and employees. Customer shall make all payments required without deduction of any Taxes, except as required by Law, in which case the amount payable shall be increased as necessary so that, after making any required deductions and withholdings, Plex receives and retains (free from any liability for payment of Taxes) an amount equal to the amount it would have received had no such deductions or withholdings been made. If Customer is exempt from paying any applicable Taxes, Customer shall promptly provide written evidence reasonably satisfactory to Plex of its tax-exempt status, and, upon receipt of such tax exemption documentation, Plex will not include such Taxes in Customer’s invoices.

3.4 Suspension of Services for Non-Payment. If Customer’s account is more than thirty (30) days past due (except with respect to any disputed Fees then subject to a Billing Dispute under Section 3.5), in addition to any other rights or remedies it may have under the Subscription Agreement or by Law, Plex has the right to suspend Customer’s access to and use of the Services, without any liability to Plex for such suspension, and such Services shall only be resumed if Customer pays the full amount of such undisputed invoiced Fees. The Subscription Term will remain unchanged notwithstanding any suspension of the Services hereunder.

3.5 Billing Disputes. Any dispute involving invoiced Fees must be in writing and submitted to Plex within thirty (30) days of the invoice date and include a reasonably detailed statement describing the nature and amount of the disputed Fees as well as the reasonable and good faith bases for why a credit or refund is being requested (a “Billing Dispute”). Customer shall cooperate with Plex to promptly address and attempt to resolve any Billing Dispute submitted in accordance with this Section. Customer acknowledges and agrees that, if Customer does not submit a Billing Dispute in a timely manner, Customer waives all rights to dispute such invoice and all Fees will be considered correct, owed, and binding on Customer. Notwithstanding any Billing Dispute submitted in accordance with this Section 3.5, Customer shall remain obligated to pay in a timely manner all undisputed Fees in accordance with Section 3.1 (Invoice and Payment).

4. Proprietary Rights.

4.1 Reservation of Rights. Subject to the limited rights expressly granted in this MTOS, Plex and its licensors and/or suppliers reserve all respective right, title and interest in and to the Services and Plex Property respectively, including all patents and patent applications, copyrights, trademarks and service marks, domain name rights, trade secrets, and all other intellectual property rights (collectively, “Intellectual Property Rights”). Plex may modify or improve the Services and/or any Plex Property at any time in its sole discretion. Plex’s Intellectual Property Rights include all enhancements, modifications, adaptations, derivative works, and/or additions to any of the foregoing, whether created solely or jointly by Plex, its subcontractors, and/or any third party.

4.2 Grant of Rights. The Subscription Agreement is for the use of Plex Services. This is not an agreement for sale or license of any software and/or Documentation. Plex hereby grants Customer a limited, worldwide (subject to export Laws), non-exclusive, non-transferable, right to use the Services (including the Documentation), solely for the internal business purposes of Customer and solely during the Subscription Term, subject to the terms and conditions of the Subscription Agreement within the scope of use described in the relevant Order Form. No rights are granted to Customer hereunder other than as expressly set forth in the Subscription Agreement and Plex reserves all rights not expressly granted to Customer.

4.3 Customer Obligations; Grant Restrictions. Customer shall not: (a) modify, copy, or create any derivative works based on the Services; (b) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the Services available to any third party, other than to Users as permitted herein; (c) disassemble, reverse engineer, or decompile any portion of the Services, including any software utilized by Plex in the provision of the Services, except to the extent required by Law; (d) access the Services if it (or any Affiliate) is a direct competitor of Plex or in order to build any competitive or commercially available product or service or for purposes of monitoring the availability, performance, or functionality of the Services, or for any other benchmarking or competitive purposes; (e) copy any features, functions, integrations, interfaces or graphics of the Services; (f) use the Services in violation of Laws or outside the scope of the rights granted in Section 4.2; (g) in connection with the Services, upload, send, or store any material that (i) infringes or misappropriates any Intellectual Property Rights of Plex, Plex’s licensors or suppliers, or any third party, or is (ii) obscene, threatening, or otherwise unlawful or tortious or violates any Laws or any party’s rights, including any privacy, publicity, import and export control, data protection, electronic communications, or anti-spamming Laws or rights; (h) send or store any viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents, or programs (“Malicious Code”) in or in connection with the Services; (i) interfere with or disrupt performance of the Services or the data contained therein; or (j) attempt to gain access to the Services or its related systems or networks in a manner not set forth in the Documentation related to such Services. Customer shall have sole responsibility for the collection, accuracy, quality, integrity, legality, reliability, appropriateness, legal protection, and use rights of all Customer Data (as defined in Section 4.4). Access to the Services is password-controlled and Customer is responsible for, and will implement and use industry-standard measures to, (x) maintain the security of User passwords and instruct its Users as to the importance of maintaining the confidentiality of passwords and/or User identifications; and (y) prevent unauthorized access to and/or use of the Services, and notify Plex promptly in writing of any unauthorized access and/or use. Customer will cause its Affiliates (and such Affiliates’ Users) to comply with the provisions of the Subscription Agreement and shall be responsible and liable for the acts, errors, omissions and negligence of all Users and Affiliates relating to the Subscription Agreement. Customer further agrees to comply with the terms of service of any non-Plex Property, including but not limited to software, applications or services, with which Customer uses the Services.

4.4 Ownership and Use of Customer Data; Data Processing. Customer owns all right, title and interest in and to all its data, information, and/or materials uploaded, submitted, transferred through, or processed (including the results of such processing) by or for Customer in the Services (collectively, “Customer Data”). Subject to the terms of the Subscription Agreement, Customer grants Plex and its Affiliates a worldwide, limited, non-exclusive, non-transferable (except as set forth in Section 10.6) right to (a) access, use, copy, transmit and display Customer Data to provide, update, and/or upgrade the Services; (b) prevent or address service or technical problems and/or maintain the modules that report the number and location of Users and provide Plex the ability to monitor certain usage of the Services (the “Critical Control Software”); (c) de-identify and aggregate Customer Data with other data of customers and/or third parties such that it does not reveal the identity of any individual or include personally identifiable information (“Aggregated Data”) to perform analytics and reporting for system metrics, benchmarking and marketing for industry, financial, and other business purposes; and (d) enforce the rights of the Parties under the Subscription Agreement. Customer reserves all rights in Customer Data not expressly granted to Plex.

4.5 Use of Customer Input. Customer grants Plex a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into Plex’s products and services any suggestion, enhancement request, recommendation, correction or other feedback by provided by Customer or any User relating to the Services.

4.6 Non-Plex Products and Services. Certain Non-Plex Products and/or services may be available to Customer, including, but not limited to, applications, implementation, and consulting services. Plex does not warrant or support Non-Plex Products, whether they are recommended or designated by Plex as “certified” or otherwise. Plex is not responsible for any disclosure, modification or deletion of any Customer Data resulting from access by Non-Plex Products or the applicable provider. Any acquisition by Customer of Non-Plex Products, and any exchange of data between Customer and any Non-Plex Product provider and/or service is solely between Customer and the applicable Non-Plex Product provider.

5. Product-specific Terms

5.1 Subscription Services.

5.1.1 PLEX Availability Commitment; Plex Customer Care Plans. Plex will provide Customer with the system uptime availability commitment for the Subscription Services described in Exhibit A below (“Availability Commitment”) for no additional charge. In addition, Plex will provide Customer the: (a) Plex Silver Customer Care Plan for the Subscription Services at no additional charge (see Exhibit B below) and, together with the Availability Commitment, the “SLA”).

5.1.2 Audit Rights. Customer shall maintain updated, complete, true, and accurate books and records in accordance with either generally accepted accounting principles (“GAAP”) or international financial reporting standards (“IFRS”) and in sufficient detail to permit Plex to confirm and verify the Reported Annual Revenue generated at each Authorized Location. Upon ten (10) days prior written notice to Customer (“Audit Notice”), Plex shall have the right, using its own personnel or a designated auditor, to audit and analyze Customer’s books and records solely for the purpose of verifying Customer’s Annual Revenue and compliance with the Subscription Agreement at each Authorized Location (“Plex Audit Rights”). Where Customer’s subscription to Plex Services exceeds three years, Plex Audit Rights shall apply to each Fiscal Year ending not more than three (3) years prior to the Audit Notice date. In the event Customer’s subscription to Plex Services is less than three years at the Audit Notice date, Plex Audit Rights shall only apply to the number of Fiscal Years ended following the Effective Date. Any audit and/or inspection may be conducted at Customer’s facilities during regular business hours upon reasonable prior written notice. Customer shall promptly and reasonably cooperate with each such audit or inspection and agrees to provide Plex’s designated audit or inspection team access to the relevant Customer books, records, and facilities. Within thirty (30) days of receipt of written notice, Customer shall pay Plex the full amount of any underpayment of Fees revealed by the audit plus interest at the rate or in the amount determined pursuant to Section 3.2 from the date such payment was due. Plex will bear the expenses associated with such audit unless the audit results establish that Annual Revenue reporting inaccuracies have resulted in an underpayment to Plex of more than five percent (5%) of the amount of subscription Fees actually due for the period that was the subject of such audit, in which case, Customer shall immediately pay Plex the full amount of (a) the underpaid Fees plus interest, as determined in accordance with the preceding sentence; and (b) reasonable, documented out-of-pocket costs and expenses of such audit. If Customer reasonably disputes the results of a Plex audit, it may conduct its own audit at its own expense and will promptly disclose to Plex the results of such audit.

5.2 Software.

5.2.1 Scope of Licensed Access and Use. Customer may install, use, and run one copy of the Software on Customer’s equipment at each Authorized Location. The total number of installed copies of the Software will not exceed the number of Authorized Locations set forth in an applicable Order Form. Customer may make one copy of solely for testing, disaster recovery, or archival purposes. Any copy of the Software made by Customer: (a) will remain the exclusive property of Plex; (b) be subject to the terms and conditions of the Subscription Agreement; and (c) must include all copyright or other Intellectual Property Rights notices contained in the original.

5.2.2 Upon Customer's installation of updates of Software in a production environment, the Software and Documentation Licenses granted under the Subscription Agreement will apply to the update.

5.2.3 Third Party Services. The Software incorporates Third Party Services that are licensed solely for use with the Software and which are governed by the Third Party Terms and the Subscription Agreement. Customer shall have or obtain all other licenses for any third-party software required for Customer’s use of the Software. In the event of a conflict or inconsistency between the Subscription Agreement and the Third Party Terms, the Third Party Terms will prevail except for terms relating to fees, payment, term and termination, in which event the Subscription Agreement prevails.

5.2.4 Relocation. Customer may change the Authorized Location with Plex's prior written consent (subject to applicable relocation fees) and may operate the Software concurrently at the old and new Authorized Locations for a period not to exceed ninety (90) days without having to obtain an additional License.

5.2.5 Maintenance and Support.

5.2.5.1 Maintenance Releases. During the Subscription Term, Plex will provide Customer with all Maintenance Releases (including updated Documentation) that Plex may, in its sole discretion, make generally available to its licensees at no additional charge. All Maintenance Releases provided by Plex to Customer are deemed Software. Customer will install all Maintenance Releases as soon as practicable after receipt.

5.2.6 Audit Rights. Customer will keep accurate records of the number and location of copies of the Software made and distributed, and the number, license types and locations of users of the Software. Plex may enter Customer's premises during business hours on reasonable advance notice for the purpose of examining, or having examined, Customer's relevant books, records, disaster recovery plan and computers to verify Customer's compliance with the Subscription Agreement. Plex will be subject to reasonable rules and regulations regarding access to the Customer's facilities that are provided to Plex in advance of the audit. Audits will be at Plex’ s expense, unless the audit reveals that Customer has materially breached the Subscription Agreement, in which case the audit will be at Customer's expense. Plex may provide the audit results to its licensors when required by the licensors.

6. Confidentiality.

6.1 Confidential Information; Exceptions. “Confidential Information” means all information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Customer Confidential Information includes Customer Data; Plex Confidential Information includes the Services (including all Documentation); and Confidential Information of each Party includes the terms and conditions of the Subscription Agreement (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed or made accessible by such Party. Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party without access to or reliance on any of the Disclosing Party’s Confidential Information.

6.2 Protection. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (but not less than reasonable care) to (a) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of the Subscription Agreement; and (b) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, advisors, agents, and contractors (collectively, “Representatives”) who need access for purposes consistent with the Receiving Party’s performance and/or obligations under the Subscription Agreement and who have signed confidentiality agreements with the Receiving Party containing protections, or have ethical duties to the Receiving Party, not materially less protective of the Disclosing Party’s Confidential Information than those contained in this Section. Each Party shall be and remain fully liable and responsible for its Representatives’ unauthorized disclosure and/or use of the other Party’s Confidential Information. Each Party may confidentially disclose the terms of the Subscription Agreement (including any Order Form) to any actual or potential financing source or acquirer. Notwithstanding the foregoing, Plex may disclose the terms of the Subscription Agreement and any applicable Order Form to a subcontractor to the extent necessary to perform Plex’s obligations to Customer under the Subscription Agreement, under terms of confidentiality materially as protective as set forth in this Section.

6.3 Compelled Disclosure; Retention. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by Law, provided, to the extent legally permissible, the Receiving Party gives the Disclosing Party prior written notice of the compelled disclosure and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure or limit the extent of the disclosure through a protective order or other legal measure. If the Receiving Party is compelled by Law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing access to that Confidential Information. Notwithstanding anything to the contrary contained herein, Receiving Party (a) will be entitled to retain copies of Confidential Information for internal record keeping purposes and compliance with Laws and industry standards or for the purposes of defending or maintaining litigation; and (b) will not be obligated to erase or destroy any of Disclosing Party’s Confidential Information that is contained in its archived data storage.

6.4 Injunctive Relief. The Receiving Party acknowledges that unauthorized disclosure of the Disclosing Party’s Confidential Information may cause substantial harm to the Disclosing Party for which damages alone might not be a sufficient remedy and, therefore, that upon any such actual or threatened disclosure by the Receiving Party the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law or in equity.

7. Representations, Warranties, Exclusive Remedies and Disclaimers.

7.1 Warranties.

7.1.1 General Warranty. Each Party warrants that it has the authority to enter into the Subscription Agreement and, in connection with its performance of the Subscription Agreement, shall comply with all Laws, including those related to data privacy, international communications, and the transmission of technical and/or personal data.

7.1.2 Subscription Services Warranty. Plex warrants that during the applicable Subscription Term (a) the Subscription Services shall perform materially in accordance with the (i) Documentation related to such Services; and (ii) Availability Commitment; and (b) it will use commercially reasonable efforts to prevent the introduction of Malicious Code into Customer’s systems (except for any Malicious Code introduced by Customer or its Users to the Subscription Services).

7.1.3 Software Warranty. Plex warrants that during the Subscription Term the Software shall perform materially in accordance with the Documentation related to such Software when the Software is used in accordance with the Documentation (“Defect”). To be valid, a warranty claim must be submitted in writing to Plex no later than thirty (30) days after the first date the deficiency is identified by or becomes known to Customer.

7.2 Exclusive Remedies.

7.2.1 Subscription Services. As Customer’s exclusive remedy and Plex’s sole liability for breach of the warranties set forth in Section 7.1.2 (a) above, (1) with respect to the warranty in Section 7.1.2(a)(i), (x) Plex shall correct the non-conforming Subscription Service at no additional charge to Customer; and (y) in the event that Plex is unable to correct any such deficiency after its good faith efforts, Plex shall refund Customer all Fees paid that are attributable to the defective Subscription Service from the date Plex received such written notice; and (2) with respect to the warranty in Section 7.1.2(a)(ii) above, Customer’s exclusive remedies are set forth in the Availability Commitment in the SLA. To receive any warranty remedies, Customer must promptly report the deficiency in writing to Plex, but no later than thirty (30) days after the first date the deficiency is identified by or becomes known to Customer.

7.2.2 Software. As Customer's exclusive remedy and Plex's sole liability for Software performance under the Subscription Agreement (1) Plex shall use reasonable efforts to correct any Defect as soon as reasonably practicable, or (2) if such correction is not reasonably achievable by Plex as confirmed by Plex in writing, Customer may terminate the Software license and, provided Customer certifies that all copies of the Software have been returned or destroyed in accordance with section 9.3.2, receive a refund of the prepaid and unused Fee attributable to the Software from the date Plex receives Customer’s warranty claim.

7.3 DISCLAIMERS. Except as expressly provided in this Section 7, Plex makes no warranty of any kind, whether express, implied, statutory or otherwise, and specifically disclaims all implied warranties, including any implied warranty of merchantability, fitness for a particular purpose, title (including non-infringement), and any implied warranty arising from statute, course of dealing, course of performance or usage of trade, to the maximum extent permitted by law. Plex does not warrant that the Services will be error free or operate without interruption or downtime. Further, Plex shall not be responsible for any limitations, delays, and any other problem inherent in the use of the internet and/or electronic communications. Further, and with respect to Software only, the express warranty set forth in section 7.1.3 does not apply (A) to errors or malfunctions caused by (1) Customer's equipment, (2) software not licensed from or approved in writing by Plex, (3) Customer’s or any third party's negligence, abuse, misapplication, or misuse of the Software, including any use of the Software other than as specified in the Documentation or expressly authorized by Plex in writing, (4) Customer's failure to use or implement Corrections or updates, (5) use of the Software in combination with materials or hardware not provided, specified or approved in writing by Plex, (6) improper installation by Customer, any third party personnel contracted to operate the Software on behalf of Customer or, or a third party not authorized in writing by Plex, (7) the operation of, or access to Customer’s or a third party’s system or networks, or (8) any other circumstances or causes outside of the reasonable control of Plex, or (B) to Evaluation Licenses. The warranty under section 7.1.3 shall be void if Customer or any third party modifies or changes the Software in any way beyond the scope of the configuration options contained in the Software. Except as otherwise agreed in writing between Plex and Customer, Plex will not be required to maintain compatibility between the Services (including the Software) and any other software (other than Plex-supported third party software).

8. Indemnification.

8.1 Indemnification by Plex. Plex shall indemnify, defend and hold Customer, its officers, directors, employees and contractors harmless from and against any third party claims, demands, suits, or proceedings (“Claims”) against Customer alleging that the use of the Subscription Services as contemplated in the Subscription Agreement including any Documentation infringes any copyright, U.S. patent issued as of the Effective Date, or trademark of a third party, and shall pay all costs and damages finally awarded against Customer by a court of competent jurisdiction as a result of any such Claim; provided, however, that Customer: (a) promptly gives Plex written notice of the Claim; (b) gives Plex sole control of the defense and settlement of the Claim (provided that Plex may not settle any Claim or enter into any stipulated order or judgment that purports to bind Customer unless it unconditionally releases Customer of all liability); and (c) provides to Plex, at Plex’s cost, all reasonable cooperation and assistance. Plex shall not be required to indemnify Customer in the event of: (i) any modification of the Services and/or Documentation by Customer, its employee, agent, subcontractor, and/or User in conflict with Customer’s obligations or as a result of any prohibited activity as set forth herein; (ii) use of the Services in an unauthorized manner or any manner inconsistent with the Documentation; or (iii) use of the Services in combination with any other software, product or service not provided, approved, or specified by Plex in writing prior to such combined use. If (1) Customer is enjoined from using the Services; or (2) the Services become, or Plex believes the Services are likely to become, the subject of an infringement Claim, then Plex shall have the right, in its sole discretion, to (y) obtain for Customer the right to continue use of the Subscription Services; or (z) replace or modify the Services so that they are no longer infringing. If neither Sections 8.1 (y) or (z) are reasonably available to or commercially feasible for Plex, then Plex, in its sole discretion, may terminate the affected Services immediately upon written notice to Customer, upon such termination, Plex’s sole liability shall be to provide Customer a pro-rata refund of any prepaid Fees attributable to the Services that were to be provided after the effective date of termination. This Section 8.1 sets forth Plex’s sole liability and Customer’s sole and exclusive remedy with respect to any claim of intellectual property infringement.

8.2 Indemnification by Customer. Customer shall indemnify, defend and hold Plex, its officers, directors, employees and contractors harmless from and against any Claims against Plex:

(A) alleging that any Customer Data misappropriates or infringes the rights of, or has caused harm to, a third party or violates any Law, and

(B) with respect to Software only,

(i) that any Intellectual Property Rights or other right of any person, or any applicable Law, is or will be infringed, misappropriated, or otherwise violated by any:

(a) use or combination of the Software by or on behalf of Customer or any of its Representatives with any hardware, software, system, network, service, or other matter whatsoever that is neither provided nor authorized by Plex in these Mach2 Terms, the Agreement, and the Documentation; and

(b) information, materials, or technology directly or indirectly provided by Customer or directed by Customer to be installed, combined, integrated, or used with, as part of, or in connection with the Software or Documentation;

(ii) relating to facts that, if true, would constitute a breach by Customer of any representation, warranty, covenant, or obligation under the Subscription Agreement; or

(iii) relating to use of the Software or Documentation (as applicable to the Software) by or on behalf of Customer or any of its Users that is outside the purpose, scope or manner of use authorized by the Subscription Agreement or the Documentation, or in any manner contrary to Plex's or its licensor’s instructions.

and shall pay all costs and damages finally awarded against Plex by a court of competent jurisdiction as a result of any such Claim; provided, however, that Plex: (a) promptly gives Customer written notice of the Claim; (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle any Claim or enter into any stipulated order or judgment that purports to bind Plex unless it unconditionally releases Plex of all liability); and (c) provides to Customer, at Customer’s cost, all reasonable cooperation and assistance.

9. Damages Exclusions; Limitation of Liability; Mitigation of Damages.

9.1 Exclusion of Consequential and Related Damages; Limitation of Liability. To the maximum extent permitted by law and except with respect to: (a) a Party’s indemnification obligations in Section8; (b) a Party’s gross negligence or willful misconduct; (c) Customer’s breach of Section 4.3 (Customer Obligations; Grant Restrictions) above; and (d) Customer’s payment obligations under the Subscription Agreement, in no event shall (i) either Party or its suppliers, affiliates, directors, officers, employees, agents, or contractors have any liability to the other Party or any third party for any indirect, special, incidental, cover, reliance, punitive, exemplary or consequential damages of any kind, however caused, or for any loss of business, revenue, anticipated savings, profits, use, and/or loss or corruption of any data and/or cost of data reconstruction or procurement of substitute or replacement goods, services, inventory or equipment, whether in contract, tort, negligence, strict liability, or under any other theory of liability, arising out of, or in any way connected with the Subscription Agreement, even if such Party has been previously advised of the possibility of such loss and/or damages; and (ii) either Party’s entire and maximum liability arising out of or related to this MTOS and/or the applicable Order Form, whether in contract, tort, negligence, strict liability, or under any other theory of liability, exceed in the aggregate, the total fees actually paid or payable to Plex by Customer during the twelve (12) month period immediately preceding the date the claim first arose which gave rise to the claim for damages. The foregoing limitation of liability is cumulative for all claims in any matter related to the Subscription Agreement and is not per incident.

9.2 Mitigation of Damages. The claiming Party shall use commercially reasonable and good faith efforts to mitigate and avoid any damages.

10. Subscription Term; Termination.

10.1 Subscription Term. The initial term for an Order Form shall commence on the effective date of the applicable Order Form and shall continue in effect until the expiration or termination of the applicable Order Form (the “Initial Subscription Term”). Unless otherwise agreed in the applicable Order Form, an Order Form will automatically renew for successive twelve (12) month periods (each, a “Renewal Subscription Term” and, together with the Initial Subscription Term, the “Subscription Term”) unless either Party gives the other Party written notice of non-renewal at least sixty (60) days prior to the expiration of the then-current Subscription Term.

10.2 Termination. A Party may terminate an Order Form or, at the election of the terminating Party, the Subscription Agreement: (a) upon thirty (30) days prior written notice to the other Party of a material breach by the other Party if such material breach remains uncured at the expiration of such thirty (30) day notice period; or (b) immediately in the event the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. In the event the Subscription Agreement is terminated, this MTOS and all Order Forms are simultaneously terminated. Notwithstanding any terms to the contrary in the Subscription Agreement, if any amounts owed by Customer (except for any Disputed Fees then in dispute under Section 3.5) are not fully-paid when due in accordance with Section 3 above, Customer shall be in material breach of the Subscription Agreement and, in addition to its other rights and remedies at law or in equity, Plex may terminate the Subscription Agreement and cease providing all Services, effective immediately upon delivery of written notice to Customer.

10.3 Effect of Termination.

10.3.1. General. Upon any termination of the Subscription Agreement or any Order Form, Customer shall, as of the date of such termination, immediately cease accessing and otherwise utilizing the applicable Services (except as permitted under Section 10.4) and all Plex Confidential Information. If Customer terminates the Subscription Agreement or any Order Form prior to the expiration of the applicable Subscription Term for Plex’s uncured breach, Customer shall be entitled to a refund of all pre-paid Fees for the Services paid for but not provided by Plex beyond the effective date of termination. If, prior to the expiration of the applicable Subscription Term, (a) Customer terminates the Subscription Agreement or any Order Form and such termination is not due to Plex’s uncured breach; or (b) Plex terminates the Subscription Agreement or any Order Form due to Customer’s uncured breach (collectively, an “Early Termination”) and Customer has not already paid in advance the full amount of all Fees due under the Order Form(s) being terminated, Customer shall pay Plex an early termination charge equal to all Fees, including all applicable Taxes, set forth in each Order Form being terminated which would otherwise be due through the end of the entire Subscription Term under such Order Form(s) (the “Early Termination Fee”). The Parties agree that the precise damages resulting from an Early Termination are difficult to ascertain and the Early Termination Fee is a reasonable estimate of anticipated actual damages and not a penalty. Customer agrees and acknowledges that the Early Termination Fee shall apply even if Customer terminates the Subscription Agreement or any Order Form prior to commencement of Customer’s access to or use of the Services. The Early Termination Fee shall be due and payable within ten (10) days of the effective date of termination and any prepaid Fees will be applied towards the amount of the Early Termination Fee owed by Customer.

10.3.2 Software License Termination.

10.3.2.1Customer may terminate the Software License in accordance with the terms of the Subscription Agreement subject to destroying or returning to Plex, at Plex's option, all copies of the Software and Documentation.

10.3.2.2Within thirty (30) days after the termination or non-renewal of a License:

(a) a corporate officer of Customer shall certify that Customer has ceased all use of and destroyed all copies of the Software and Documentation;

(b) any data that is retained in formats only readable by the Software will not be accessible; and

(c) all rights to use the Software and Documentation have been terminated and that any further use of the Software or Documentation, including     copies, is unauthorized and would be in violation of Plex's rights.

10.4 Retrieval of Customer Data from the Subscription Services. If Plex receives a written request from Customer within thirty (30) days after any expiration or termination of the Subscription Agreement or applicable Order Form, then for a period of up to thirty (30) days after such written request is received, Plex will make the Customer Data available to Customer through the Services on a limited basis solely for the purpose of allowing Customer to retrieve such Customer Data. After such thirty (30) day period for retrieval of Customer Data has elapsed, Plex will have no obligation to maintain or provide access to any Customer Data and may thereafter, unless prohibited by Law, delete all Customer Data without any liability to Plex for such deletion. If Customer requires Plex’s assistance, Customer may purchase Professional Services at Plex’s then-current billing rates pursuant to the Professional Services Terms and a Work Order entered into in accordance with such terms. With respect to each Party’s Confidential Information (other than treatment of Customer Data set forth in this Section 9.4), upon receipt of a written request from the other Party within thirty (30) days after any expiration or termination of the Subscription Agreement and subject to Section 5.3(b) above, each Party will promptly return the other Party’s Confidential Information or destroy such Confidential Information in all forms and types of media, and provide written confirmation of such destruction.

11. General Provisions.

11.1 Export and OFAC Compliance. The Services and other technology Plex may make available, and derivatives thereof, may be subject to export laws and regulations of the United States and other jurisdictions. Each Party represents that neither it nor any of its employees is (a) a person or entity with whom U.S. entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated and Blocked Persons List) or under any statute, executive order or other governmental action; or (b) named on any U.S. government denied-party list. Customer shall not permit Users to access or use any of the Services in a U.S. embargoed country or in violation of any U.S. export law or regulation.

11.2 Employee Solicitation. While the Subscription Agreement is in effect and for one (1) year thereafter, Customer shall not, directly or indirectly, solicit for employment or engage (whether as an employee, independent contractor, or consultant) any Plex employee or subcontractor who was involved in providing the Services. An employee’s or subcontractor’s response to a general, non-targeted advertisement for employment shall not be deemed solicitation for the purposes of this MTOS.

11.3 Survival. All provisions of the Subscription Agreement (including each Order Form) relating to disclaimers of warranties, remedies, intellectual property ownership, confidentiality, indemnification, limitation of liability, payment obligations, restrictions on use, early termination, and any other terms that either expressly or by their nature should survive, shall survive any expiration or termination of the Subscription Agreement for any reason, and shall continue in full force.

11.4 Publicity. Neither Party may issue any press release regarding the Subscription Agreement without the other Party’s prior written consent. Either Party may include the other Party’s name and logo in customer or vendor lists, subject to and in accordance with the other Party’s standard guidelines.

11.5 Entire Agreement; Interpretation; Order of Precedence. The Subscription Agreement is the entire agreement between Customer and Plex regarding Customer’s use of Services and supersedes and merges all prior and contemporaneous, written or oral, agreements, understandings, proposals, marketing materials, and representations concerning its subject matter and the Services and there are no representations, understandings, or agreements that are not fully expressed in the Subscription Agreement. Except as otherwise provided herein, no provision of the Subscription Agreement (including any applicable Order Form) may be amended, modified, superseded or terminated, or any term or condition waived, unless the Parties agree in writing, signed by a duly authorized representative of each Party. The Parties agree that any term or condition stated in Customer’s purchase order or in any of Customer’s other order documentation (other than an Order Form executed by both Parties) is void. The Subscription Agreement (including each Order Form) will be construed and interpreted fairly, in accordance with the plain meaning of its terms, and there will be no presumption or inference against the Party drafting the Subscription Agreement (or any Order Form) in construing or interpreting any of the provisions. Headings contained in this MTOS are inserted for convenience of reference only and shall not in any way define or affect the meaning or interpretation of any provision of the MTOS. Terms for which meanings are defined in the Subscription Agreement shall apply equally to the singular and plural forms of the terms defined. Unless otherwise indicated, in the Subscription Agreement, (a) “including” (i) shall mean “including, without limitation” or words of similar effect; and (ii) when used in one instance to specify the inclusion of a particular term or meaning within another term or meaning shall not operate to exclude such specified term or meaning from the other term or meaning in instances where similar inclusive language does not appear; and (b) “or” connotes any combination of all or any of the items listed. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (a) the applicable Order Form; (b) this MTOS; and (c) the Documentation.

11.6 Assignment. Neither Party may assign any of its rights or obligations under the Subscription Agreement, whether by operation of law or otherwise, without the other Party’s prior written consent (not to be unreasonably delayed or withheld); provided, however, either Party may assign the Subscription Agreement in its entirety (together with all Order Forms), without the other Party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets provided that the assignee agrees in writing to be bound by all the terms of the Subscription Agreement (including this MTOS and all Order Forms) and, in the case of an assignment by Customer, all past due Fees (except for any disputed Fees then subject to a Billing Dispute under Section 3.5) are paid in full.

11.7 Relationship of the Parties; Third Party Beneficiaries. The Parties are independent contractors. The Subscription Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties. Except for each Party’s indemnification obligations under this MTOS, there are no third party beneficiaries under the Subscription Agreement.

11.8 Force Majeure. Except for a Party’s payment obligations, neither Party shall be liable to the other for any delay or failure to perform under the Subscription Agreement due to circumstances beyond such Party’s reasonable control, including acts of God, any government act or directive, epidemic or pandemic, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (excluding those involving such Party’s employees or contractors), service disruptions involving hardware, software or power systems not within such Party’s possession or reasonable control, and denial of service attacks. A force majeure event does not include economic hardship.

11.9 Waiver. No failure or delay by either Party in exercising any right, remedy, or obligation under the Subscription Agreement will constitute a waiver of that right, remedy, or obligation or any other right, remedy, or obligation. Any waiver of any right, remedy, or obligation under the Subscription Agreement must be in writing and signed by a duly authorized representative of each Party. A waiver on one occasion shall not be construed as a waiver of any obligation, right, or remedy on any future occasion. Except as otherwise expressly stated in this MTOS, the remedies provided herein are in addition to, and not exclusive of, any other rights and/or remedies of a Party at law or in equity.

11.10 Governing Law; Dispute Resolution.

(A) Governing Law. The Subscription Agreement and any action, claim, controversy, right, remedy, obligation, dispute, and/or litigation arising under or related to the Subscription Agreement (collectively and individually a “Dispute”) shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia, USA, without regard to conflicts of laws principles.

(B) Dispute Resolution.

i. Subject to Section 11.10(B)(ii), any Dispute shall be brought exclusively in the United States District Court for the Eastern District of Virginia or, if such federal court would not have jurisdiction over the matter, then only in the Circuit Court for the County of Fairfax, Virginia. Each Party irrevocably consents and submits to the exclusive jurisdiction of these courts and agrees not to commence any legal action arising from, relating to, or in connection with the subject matter of the Subscription Agreement or any Dispute in any other court or forum. The parties waive any right to jury trial in connection with the Subscription Agreement and any Dispute.

ii. Notwithstanding Section 11.10(B)(i), a Dispute specifically arising from Customer’s breach of payment obligations under Section 3 above (“Payment Dispute”) shall be resolved exclusively in mandatory arbitration in accordance with this Section. A Payment Dispute shall be settled by final and binding arbitration in accordance with the American Arbitration Association ("AAA") Commercial Arbitration Rules. The arbitration proceeding shall be conducted in English and shall occur in the Washington, DC metropolitan area, or, with the written consent of the arbitrator and parties, another mutually agreeable metropolitan area. The Parties further agree that any other Dispute (including a Payment Dispute) that may be related or responsive to a demand for arbitration but that are not arbitrable shall be severed from the arbitration proceeding and resolved in accordance with the provisions of Section 11.10(B)(i).

11.11 Notices. Unless otherwise provided in the Subscription Agreement, all notices (except for routine business communications and maintenance windows) must be in writing and will be effective upon (a) the day of delivery, if delivered by hand, with signed confirmation of receipt by Plex, (b) the fifth (5th) business day after mailing when mailed by certified or registered mail, return receipt requested, postage prepaid; or (c) the next business day if sent by overnight courier service. Notices to Plex must be sent to its principal place of business identified in this MTOS and sent to the attention of “Chief Financial Officer” with a copy sent via email to Plex’s legal department at legalnotices@plex.com. Receipt by Plex’s legal department of copy notices shall not constitute effective deliver for the purposes of this section 11.11. Notices to Customer shall be addressed to Customer’s signatory at its principal place of business set forth above in the first paragraph of the MTOS or such other address received by Plex in writing from Customer for purposes of providing notices under this Section.

11.12 Severability. If any provision of the Subscription Agreement is held by a court of competent jurisdiction to be contrary to Law, the provision will be deemed void, and the remaining provisions of the Subscription Agreement will remain in full effect.

11.13 Data Privacy. For purposes of processing personal information subject to additional legal requirements, including, but not limited to the General Data Protection Regulation (“GDPR”) (EU) 2016/67 and the California Consumer Privacy Act, Plex and Customer agree that such Processing will be in accordance with the Plex General Privacy Terms between the Parties and referencing this MTOS.

11.14 Counterparts; Electronic Signatures. The Subscription Agreement (including any Order Form) may be executed and delivered in any number of counterparts by facsimile, emailed PDF, or electronic signature, each of which will be deemed an original, but all of which together will constitute one and the same instrument and, notwithstanding their date of execution, shall be deemed to be effective as of the Effective Date (unless such document expressly provides otherwise).

Exhibit A–SLA

Subscription Services Availability Commitment

Service Availability Commitment. During the term of the Subscription Agreement, the Subscription Services will be available no less than 99.9% of the total number of minutes within a calendar month (the “Monthly Service Availability Commitment”). The achievement of Service Availability Commitment excludes the following: (a) any scheduled maintenance, including without limitation scheduled maintenance communicated to Customer in writing at least four (4) business days in advance; (b) any unavailability due to any force majeure event as set forth in the Subscription Agreement; (c) any problem resulting from Customer using the Subscription Services in conjunction with any hardware or software not provided by Plex; (d) any interruption or delay in providing access to the Subscription Services resulting from telecommunications or internet problems, power failures and/or service provider failures outside of Plex’s datacenter(s); (e) any interruption or unavailability resulting from Customer’s use of the Subscription Services in an improper, unauthorized or unlawful manner; (f) any problem resulting from Customer’s or any third-party’s acts, errors or omissions or any software and/or systems not provided by Plex; and (g) any interruption resulting from disconnection or suspension of the Subscription Services for nonpayment in accordance with Section 3.4 of the Subscription Agreement. Plex will track compliance with the Monthly Service Availability Commitment on a monthly basis and will provide Customer with a report upon written request.

Scheduled and Unscheduled Maintenance. Plex may have weekly or bi-weekly scheduled maintenance periods on Sundays between 6 AM ET to noon ET to perform system maintenance, backup and upgrade functions for the Subscription Services. If scheduled maintenance is required outside of this maintenance period, Plex will notify Customer at least four (4) business days in advance. In the event unscheduled maintenance may be required to resolve issues that are critical for performance of the Subscription Services, Plex will notify Customer as soon as practicable under the circumstances regarding any unscheduled maintenance. All scheduled and unscheduled maintenance notifications are logged and communicated to Customer electronically in writing via the Subscription Services. All of the Categories listed in the customer care plans below exclude scheduled maintenance.

System Availability Credit. Any request for a credit must be made in writing by the Customer within thirty (30) days following the last day of the month of Plex’s failure to meet the Monthly Services Availability Commitment. Upon such request, Plex will issue a credit of 10% of the Subscription Fee divided by twelve (12) for the month of the failure (the “Service Availability Credit”). If a written request for credit is not provided timely, Customer acknowledges and agrees that the right to receive a Service Availability Credit with respect for failure to achieve the Monthly Service Availability Commitment shall be deemed waived. The Service Availability Credit shall be Customer’s sole and exclusive remedy in the event that the Monthly Service Availability Commitment has not been achieved and, under no circumstance, shall Plex’s failure to meet the Monthly Service Availability Commitment be deemed a default or breach of the Subscription Agreement.

Notwithstanding anything to the contrary in this Exhibit A, Customer may terminate the applicable Order Form without liability for payment of an Early Termination Fee in the event of a Chronic Service Unavailability (as defined below) of the Subscription Services under such Order Form. For purposes of this Exhibit A, “Chronic Service Unavailability” means a situation in which the Subscription Services (i.e., PLEX) is available less than 97% of the total number of minutes within a calendar month for three (3) consecutive months or four (4) times during any twelve (12) month period during the Subscription Term then in effect. In determining the availability percentage of PLEX in any particular calendar month, the exclusions set forth in clauses (a) through (g) in the paragraph entitled “Service Availability Commitment” of this Availability Commitment shall apply. Following the termination of an Order Form due to a Chronic Service Unavailability, Customer shall be entitled to a refund of all pre-paid Fees for the Services paid for but not provided by Plex beyond the effective date of termination of such Order Form.

Production Monitoring Availability Commitment

System Availability Credit. With respect to Customer’s subscription to Production Monitoring only, any request for a credit must be made in writing by the Customer within thirty (30) days following the last day of the month of Plex’s failure to meet the Monthly System Availability Commitment. Upon such request, Plex will issue a credit of 10% of the Subscription Fee divided by twelve (12) for the month of the failure (the “System Availability Credit”). If a written request for credit is not provided within 30 calendar days following the end of the month for which a Customer is seeking the System Availability Credit, Customer acknowledges and agrees that the right to receive a System Availability Credit with respect for failure to achieve the Monthly System Availability Commitment shall be deemed waived. The System Availability Credit shall be Customer’s sole and exclusive remedy in the event that the Monthly System Availability Commitment has not been achieved and, under no circumstance, shall Plex’s failure to meet the Monthly System Availability Commitment be deemed a default or breach of the Agreement.

EXHIBIT B - CUSTOMER CARE PLAN

The Silver Plan will be provided to Customer at no additional charge.

The Plex Support Portal (PSP) support infrastructure provides live technical and support services to Customer as part of the Plex Customer Care Plan and is available via a toll-free number during Plex’s normal business hours -- Monday through Friday, excluding holidays observed by Plex (as further described in the “Telephone Support” section below). The PSP can also be accessed online where support requests can be submitted by Customer on a 24/7/365 basis (as further described in the “Trouble Ticket” section below).