TERMS OF SERVICE
THIS AGREEMENT IS BETWEEN US (“PIVOTAL PENGUIN”, “WE”, OR “OUR”) AND YOU (“PARTNER”, OR “YOUR”). BY ACCEPTING THIS AGREEMENT, BY ACCESSING; BY BROWSING PIVOTAL PENGUIN WEBSITES; BY CLICKING A BOX INDICATING YOUR ACCEPTANCE; BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT; OR FOR FREE SERVICES, BY USING SUCH SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF AT ANY TIME YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE OUR SERVICES.
You may not access the Services if you are our direct competitor, except with our prior written consent. In addition, you may not access our services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
“Augmented Data” means information you submit to us to update, enhance, or augment such data to augment, verify, or correct through the use of our database, public sources, and/or through third party service providers.
“Consulting Services” means the professional services available to you, subject to applicable fees, which may include training services, partner development, integration, or any other consulting services.
“Confidential Information” means all non-public, confidential or proprietary information that one party or its representative make available (“Disclosing Party”) to the other party (“Receiving Party”) in connection with this Agreement. Confidential Information includes, without limitation, the terms of this Agreement, Order Form, technical data, programs, code, trade secrets, marketing strategies, software, documentation, business information as well as information related to the past, present and future plans, ideas, business strategies, customers and suppliers of each party and its affiliates, as case may be. Information already known to the Receiving Party prior to the receipt from the Disclosing Party, or public knowledge is not considered Confidential Information.
“Customer” means an individual, or legal entity user that obtains websites or services from you.
“Documentation” means works of authorship that we make generally available for you and/or your Customer use with the Services that comprises either: (a) instructions for the software use; or (b) description of the software’s operational and/or design characteristics.
“Free Services” means subscription services or other products and features made available to you, or a free trial basis. Free Services exclude Purchased Services.
“Intellectual Property” means the following: all algorithms, application programming interfaces (APIs), concepts, Confidential Information, data, databases and data collections, designs, diagrams, documentation, drawings, flow charts, ideas and inventions (whether or not patentable or reduced to practice), know-how, materials, marketing and development plans, marks (including brand names, product names, logos, and slogans), methods, models, architectures, procedures, processes, protocols, software code (in any form including source code and executable or object code), uniform resource identifiers including uniform resource locators (URLs), user interfaces, web sites, specifications, subroutines, techniques, works of authorship, and other forms of technology
“Intellectual Property Rights” means all present and future rights of the following types, that may exist or be created under the laws of any jurisdiction in the world: (a) rights associated with works of authorship, including exclusive exploitation rights, copyrights, moral rights, and mask work rights; (b) trademark and trade name rights and similar rights; (c) trade secret rights; (d) patent and industrial property rights; (e) other proprietary rights in Intellectual Property of every kind and nature; and (f) rights in or relating to registrations, renewals, extensions, combinations, divisions, and reissues of, and applications for, any of the rights referred to in clauses (a) through (e) of this sentence
“Marketplace” means an online marketplace of applications and/or services made available by us and third-party providers.
“Marks” means any trademark, service mark, or trade name of a party.
“Order” or “Order Form” means online ordering document that has your information including, your contact information, subscription tier, term, activated products and so on.
“Platform” means the application that allows you to use and access the Solutions.
“Purchased Services” means subscription services or other products and features made available for purchase. Purchased Services exclude Free Services.
“Solutions” means products and/or services that we will make available in the Platform for you and/or for your Customer.
“Services” means the products and services that are enabled by you through Platform and Solutions, ordered by you under an Order Form, or provided to you under Free Services. Services exclude Marketplace and non-Pivotal Penguin applications.
“Your Data” means electronic data and information submitted to our Services by you or on your behalf
“User” means any individual or a legal entity accepting this Agreement or who is authorized by you to use Services, for whom you have purchased a subscription. Users may include you, your employees, consultants, contractors, and your Customers.
2. SERVICES AND OUR RESPONSIBILITY
1. Provision of Purchased Services. Subject to this Agreement or any applicable Order Form, we will do the following: (a) provide you with standard support, or upgraded support if purchased, and (b) use commercially reasonable efforts to make the online Purchased Services available 24 hours a day, 7 days a week except for: (i) scheduled maintenance; (ii) force majeure events, including an act of God, act of government, flood, fire, earthquake, war, terrorism, service provider failure, or denial of service attack; or (iii) your acts or omission.
2. Subscription; Upgrades and Downgrades. You may upgrade your subscription tier at any time during the month. You may request to downgrade your subscription tier at any time, but it will only be effective at the end of your current term.
3. Free Services. You may register for Free Services subject to the terms of this Agreement until the earlier of: (a) the end of free trial period; (b) the start date of any Purchased Services; or (c) termination by us in our sole discretion without prior notice. You agree that we will not be liable to you or any third party for any damages arising from using the Free Services or terminating free access to our Services. Except as required by law, you are solely responsible to export your data from Free Services prior to termination. We will not be responsible for any data you have entered, or any customizations made to the Services by or for you unless you purchase a subscription.
4. Modification. From time to time, we may modify any minor part of our Services to improve your experience. We will not make any material changes to our Services without providing notice.
5. Consulting Services. You may purchase professional consulting services, subject to applicable fees, which may include training services, partner development, integration, or any other consulting services.
3. YOUR USE OF SERVICES
2. Usage Restrictions. You will comply with all federal, state, provincial and local laws, rules, regulations and ordinances with respect to the performance of any of its obligations under this Agreement. You will not do the following: (a) modify, copy or create derivative works based on Services or any part thereof, (b) reverse engineer, disassemble, or decompile any of our Services or any part of them to try and find our source code; (c) use or launch any automated system, including, “robots”, “crawlers”, “spiders”, or “offline readers”; (d) use the Services in any manner that damages, disables, overburdens, or impairs any of our websites or interferes with any other party’s use of the Services; (e) attempt to gain unauthorized access to the Services; or (f) access the Services other than through our interface.
3. Your Responsibility. You will be responsible for the following: (a) User’s compliance with this Agreement, Documentation and Order Form(s); (b) for the accuracy, quality and legality of Your Data and your use of Your Data with our Services; and (c) use commercially reasonable efforts to prevent unauthorized access to and use of Services and notify us promptly of any unauthorized access.
4. FEES AND PAYMENT
1. Subscription. Unless otherwise provided in the applicable Order Form, (i) the subscription fee will remain fixed during the term; (ii) the subscription fee is non-cancellable and non-refundable; (iii) Purchased Services are purchased as subscriptions; (iv) subscription can be upgraded, and (v) any added subscription will terminate on the same date as the underlying subscriptions.
2. Onboarding Fee. This one-time setup fee will be considered in any integration and training plan we design (“Onboarding Fee”). Onboarding Fee is mandatory, subject to the level of subscription or the size of the accounts and is non-refundable.
3. Products. Certain Solutions require a certain level of active subscription tier. Fees for Solutions may vary or depend on a certain subscription tier. You agree to promptly pay on demand all amounts due and payable for each product and/or service. Activated products or services for an account are for a full period as per each specification. You may cancel any of their active products at any time, and the system will automatically deactivate the product at the end of the current term.
2. Invoicing and Payment. All amounts invoiced are due and payable immediately, unless otherwise provided in the Order Form. You are responsible for providing complete and accurate billing and contact information to us and notifying us for any changes to such information.
3. Payment Method. You will pay all fees via credit card or by other payment type specified in the applicable Order Form. You may be required to use a credit card transaction in order to activate some products and services immediately on demand. If you are making payments via credit card, you authorize us to use a third party to process payments, and consent to the disclosure of your payment information to such that third party.
4. Overdue Charges; Late or Non-Payment. If you do not pay the invoice by the due date, then without limiting our rights or remedies (a) those overdue charges may accrue 2% of outstanding balance per month, or the maximum rate permitted by law, whichever is lower, (b) we may suspend or terminate the current subscription term, and/or (c) we may alter your payment terms on future subscriptions.
5. Payment Dispute. You will notify us immediately if there is any issue with your invoice. We will not suspend the Services while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
6. Fee Increase. The pricing of any fee during any renewal term may increase up to 8% above the applicable pricing in the prior term, unless we provide you notice of different pricing at least 60 days prior to the applicable renewal term.
7. Taxes. You are responsible for paying all taxes, levies or similar governmental assessment including, for example, sales, value-added, use or withholding taxes, associated with your purchases hereunder. Our fees do not include taxes, which we will charge as applicable and you will pay that amount. You shall have no liability for any taxes based upon our gross revenues or net income. We are solely responsible for our own taxes based on our income, property and employees.
5. TERM AND TERMINATION
1. Term and Renewal. This Agreement commences on the date you first accept until specified in the applicable Order Form, or in the Platform and Solutions, and will automatically renew for an additional year, unless either party gives the other notice of non-renewal at least 90 days before the end of the relevant term. If you have purchased Solutions during the subscription term, the fees for these Solutions will be on a monthly basis (or annually as the case may be), unless otherwise indicated in your Order Form. If a subscription is not renewed, any activated Solutions will be invoiced at its full period. If you use our Free Services, we will make the Free Services available to you subject to Section 2.3 above. Except as stated in the applicable Order Form, renewal of promotional or one-time priced subscription will be at our applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which volume for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s pricing.
2. No Early Termination; No Refunds. The subscription term will end on the expiration date and the subscription cannot be cancelled early. All fees are non-refundable. If you terminate this Agreement during the term, you agree to pay any outstanding fees due and payable for the remainder of the term.
3. Termination/Suspension. Either party may terminate this Agreement for cause, upon 30 days written notice of a material breach if such breach remains uncured at the expiration of such period.
We may terminate this Agreement for cause: (i) upon fifteen (15) days written notice to you of non-payment of any amount due to us if such amount remains unpaid at the expiration of such period, (ii) immediately, if you become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, or (iii) immediately, the Customer or the User violates the Terms of Service or applicable local, state, federal, or foreign laws or regulations. While any payment is delinquent, subject to our reasonable and sufficient notice: (a) any unpaid fees will incur a late fees; (b) we may terminate or suspend your, Customer’s and/or User’s access; and/or (c) we may initiate direct communications with the Customer or any User.
3. Effects of Termination. Upon expiration or termination of this Agreement for any reason: (a) your right to use or access the Services shall cease and we have no further obligation to make the Services available to you; (b) all rights and licenses granted to you shall cease; and (c) any amounts owed to us under this Agreement shall be immediately due and payable.
4. Return of Property. Upon expiry or termination of this Agreement, you may request within 30 days to export or download Your Data. After 30-day period, we hold no obligation to maintain or provide any of Your Data and will delete or destroy all Your Data in our systems or otherwise in our possession, unless legally prohibited.
6. PROPRIETARY RIGHTS AND LICENSES
1. Proprietary Rights. All our Services are protected by intellectual property laws, they belong to and are the property of us or our licensors (if any), and we retain all ownership rights to them. You agree not to copy, rent, lease, sell, distribute, create derivative works or use them in a fashion contrary to this Agreement. You have the right to access and use the Services subject to the terms of this Agreement.
2. Your Rights; Your Data. You own and retain all rights to Your Data. You grant us and our applicable third parties to use Your Data as necessary to provide the Services to you and as permitted by this Agreement. If you are using the Services on behalf of another party, then you represent and warrant that you have all sufficient and necessary rights and permissions to do so. Subject to the limited licenses granted, we acquire no right, title or interest from you or your licensors under this Agreement.
3. License to Use Feedback. You grant us license to use and incorporate into our services any comments, suggestion, enhancement, recommendation, correction or other feedback provided by you or Users, without any payment or attribution.
4. Augmented Data. If we make Augmented Data available to you, you may use Augmented Data during your Purchased Subscription period only. We will make Augmented Data based on Your Data and it will only be available to you.
7. LEGAL TERMS
1. CONFIDENTIALITY. During the term of this Agreement and following the expiration of this Agreement, all Confidential Information related to or obtained from either party shall be held in confidence by the Receiving Party to the same extent and in at least the same manner as its own confidential information. The Receiving Party will not use Confidential Information for any purpose outside the scope of this Agreement. The Receiving Party will limit access to Confidential Information to its employees, contractors, advisors and agents, who need access for purposes consistent with this Agreement. The Receiving Party will not disclose Confidential Information to any third party without a prior written consent of the Disclosing Party. Upon notice to the Disclosing Party, the Receiving Party may disclose Confidential Information to the extent compelled by law, to do so.
2. PUBLICITY. You grant us the right to add your name and logo to our partner list, podcast and website in all our media releases.
3. INDEMNIFICATION. You will defend, indemnify and hold us harmless against any third party claim, requests for injunctive relief, demands, liabilities, obligations, losses, damages, penalties, fines, punitive damages, expenses and disbursements of any kind and nature, suit, action, or proceeding (each, an “Action”) brought by a third party under any theory of legal liability arising out of or related to any of the following: (a) your noncompliance with or breach of this Agreement, (b) actual or alleged use of the Services in violation of this Agreement or law, by you or by any person regardless of whether such person has been authorized to use the Services, (c) your use of Third Party Products, or (d) any dispute between persons who claim to have authority to act for you in connection with the control of your account with us. We will notify you so you have the right to immediately take control of the defense and investigation of any Action and provide you, at your expense, with any and all information and assistance reasonably requested by you to handle the matter. You shall not settle any Action on behalf of us or imposes any obligations on us without our prior written consent. If your or your customers’ non-identifiable data are used for research purposes, then the limitation of liability and indemnity clauses contained herein are waived with respect to any harms suffered or liabilities incurred as a result of such research activities.
4. DISCLAIMER; LIMITATION OF LIABILITY.
1. DISCLAIMER. WE AND OUR AFFILIATES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE INTEGRITY, ACCURACY, COMPLETENESS, SUCCESS, PROFITABILITY, RELIABILITY, AVAILABILITY OR EXPECTED OPPORTUNITIES ASSOCIATED WITH OUR SERVICE, DATA MADE AVAILABLE FROM THE SERVICE, OR MARKETPLACE. APPLICATION PROGRAMMING INTERFACES (APIS) MAY NOT BE AVAILABLE AT ALL TIMES. WE PROVIDE SERVICES “AS IS” AND “AS AVAILABLE”, WITHOUT WARRANTY OF ANY KIND, AND DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, ACCURACY, RELIABILITY AND NON-INFRINGEMENT. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
2. NO INDIRECT DAMAGES. THE PARTIES AGREE THAT THE ALLOCATIONS OF RISK MADE IN THIS AGREEMENT ARE REASONABLE. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, BUSINESS INFORMATION, GOOD WILL, LOSS OF PROFITS OR REVENUE, OR OTHER PECUNIARY LOSS, ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, PROVIDED HOWEVER, THIS LIMITATION SHALL NOT APPLY TO YOU IF YOU ONLY USE THE FREE SERVICES.
3. LIMITATION OF LIABILITY. IN NO EVENT SHALL OUR AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED, THE LESSER OF: $5,000 OR THE TOTAL AMOUNT PAID BY YOU FOR THE SIX MONTHS SUBSCRIPTION PERIOD IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO THE LIABILITY. THE FOREGOING LIMITATION WILL APPLY REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT OR TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), STRICT LIABILITY, BREACH OF A FUNDAMENTAL TERM OR OTHERWISE, BUT WILL NOT LIMIT YOUR LIABILITY OR OBLIGATIONS UNDER THE PAYMENT OF FEES, INDEMNIFICATION OR FOR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS. IF YOU ARE USING FREE SERVICE, THIS LIMITATION SHALL NOT APPLY TO YOU, AND IF WE ARE DETERMINED TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY ARISING FROM YOUR USE OF THE FREE SERVICE, THEN OUR AGGREGATE LIABILITY WILL BE LIMITED TO ONE HUNDRED U.S. DOLLARS.
4. THIRD PARTY PRODUCTS. WE DISCLAIM ALL LIABILITY WITH RESPECT TO THIRD PARTY PRODUCTS THAT YOU USE.
5. NO-EXCLUSIVITY AND INDEPENDENT CONTRACTOR. Customers and Partners will not have an exclusive right to any market, sell or implement Solutions, and no franchise is granted to Partner. Pivotal Penguin expressly reserves the right to market and sell the Solutions itself to any entity. Each Party to this Agreement is either a customer or an independent contractor. This Agreement does not create any agency, partnership, joint venture, employment or franchisor or franchisee relationship. Furthermore, no labor relationship between Pivotal Penguin and Partner employees is created hereby. Neither Party has the right or authority to, and will not, assume or create any obligation of any nature whatsoever on behalf of the other Party or bind the other Party in any respect whatsoever. Notwithstanding the use of the term “partner” in this Agreement, the Parties do not intend to create any legal relationship of partnership between them, and neither will assert to any third party or otherwise claim that such a legal relationship exists between them. For greater certainty, Partner hereby acknowledges and agrees that Pivotal Penguin shall not, exercise any control over, or offer assistance in, Partner’s method of operation, including locations, business organization, marketing techniques or training.
7. No Waiver. Delay in exercising any right or remedy will be a waiver of such right or remedy. No course of dealings between you and us shall be construed as a waiver of any subsequent breach or modification hereof.
8. Currency. Unless expressed in the applicable Order Form, all references to money amounts are to the lawful currency of the United States Dollars (“USD”).
9. Severability. If, in any jurisdiction, any part of this Agreement is unenforceable, such provision is ineffective without invalidating the remaining provisions of this Agreement and such unenforceable provision will be deemed to superseded by a valid, enforceable provision that most closely matches the intent of original provision
10. Interpretation. Where the word “including” or “includes” is used in this Agreement, it means “including (or includes) without limitation”.
11. Assignment. You will not assign or transfer this Agreement without our prior written consent. We may assign this Agreement to any successor by way of any merger, consolidation or reorganization, sale of all or substantially all of our assets, change of control or by operation of law.
12. Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any third-party person or entity any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement
13. Survival. The following sections shall survive the expiration or termination of this Agreement: “Definitions”, “Your Use of Services”, “Fees and Payment”, “No Early Termination; No Refunds”, “Termination/Suspension”, “Effects of Termination”, “Return of Property”, “Proprietary Rights and Licenses”, “Confidentiality”, “Publicity”, “Indemnification”, “Disclaimer; Limitation of Liability”, “No-Exclusivity and Independent Contractor” and “Miscellaneous”.
14. Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of North Carolina and all applicable federal laws of United States, without regards to its conflict of law principles. The Parties do hereby irrevocably consent to the jurisdiction of courts located in Charlotte, North Carolina for the resolution of any disputes arising out of this Agreement. The parties also agree that they will first attempt to resolve any disputes arising under this Agreement through good faith negotiations.
Assignment. You will not assign or transfer this Agreement without our prior written consent. We may assign this Agreement to any successor by way of any merger, consolidation or reorganization, sale of all or substantially all of our assets, change of control or by operation of law.