Pivotree Terms and Conditions for Subscription Services

These terms and conditions (herein the “Terms“) shall apply to and govern Pivotree’s Services (as defined below) that are provided to the person/entity referenced in the applicable Order Form (herein such person/entity called the “Customer”). The provision of any Services by Pivotree to the Customer, and/or the mutual execution of an Order Form for such Services, and/or the payment by Customer for any such Services shall constitute acceptance by Customer of all of these Terms. If Customer issues a purchase order, memorandum or any other instrument purporting to cover the Services, then such purchase order, memorandum or other instrument shall be for Customer’s internal purposes only, and is not binding upon Pivotree or the provision of the Services, whether communicated before or after commencement of the Services. These Terms may be superseded by a mutually agreed upon enforceable agreement in respect of the Services as entered by and between the Customer and Pivotree.  For the purposes of these Terms, “Pivotree” means that particular subsidiary or affiliate of Pivotree Inc. that is providing the Subscription Services to Customer.

1. DEFINITIONS.
   “Acceptable Use Policy” means any Pivotree or third party acceptable use policy that is either attached or referenced in an applicable Order Form.
   “Confidential Information” means (i) any non-public information communicated by a party to the other party in connection with these Terms that is designated in writing as confidential, (ii) Customer Data, and (iii) these Terms (including pricing and all other terms set out in any Order Form) but excludes at all times any Pattern Data.
   “Customer Data” means any and all data, information, and materials provided or submitted by Customer, its Users, or any customer of Customer, to Pivotree in the course of utilizing the Subscription Services.
   “Data Protection Laws” means all applicable laws, regulations, and other legally binding requirements in any jurisdiction applicable to the Customer’s data and relating to privacy, data protection, data security, breach notification, or the processing of personal data, including without limitation, to the extent applicable, the California Consumer Privacy Act, Cal. Civ. Code § 1798.100 et seq. and any associated regulations and amendments, including, the California Privacy Rights Act amendments; the General Data Protection Regulation, Regulation (EU) 2016/679 (“GDPR”); the Swiss Federal Act on Data Protection; the United Kingdom Data Protection Act of 2018; the Canadian Personal Information Protection and Electronic Documents Act (S.C. 2000, c. 5); Quebec’s Act Respecting the Protection of Personal Information in the Private Sector.
   “Documentation” means the user and technical help documentation for the Subscription Services made available by Pivotree to Customer.
   “Equipment“ means any equipment and connectivity services needed to connect to, access or otherwise use the Services from Customer’s business environment, including, without limitation, hardware, servers, software, operating systems, networking, web servers, mobile devices, monitors and screens.
   “Feedback“ means suggestions, comments, bug reports, feature or enhancement requests, recommendations or other feedback relating to the Services or Pivotree’s business provided to Pivotree by the Customer or the Users, or any third party acting on their behalf.
   “Fee“ or “Fees“ means all amounts payable by Customer to Pivotree in relation to the Services including implementation fees, ongoing subscription fees, usage-based fees, overages, and any other fees or charges set out in the applicable Order Form.
   “Order Form“ means a document executed either by (i) both the Customer and Pivotree directly, or (ii) the Customer and a Reseller; which describes the Services Customer is purchasing, including the Fees, initial Subscription Period, and any other details specifically related to such Services.
   “Pattern Data“ means anonymous and aggregated structured or unstructured information with recurring sequences or trends, utilized for analysis and prediction. For clarity, “Pattern Data“ excludes Customer-specific, confidential or sensitive information.
   “Product“ means the Pivotree software-as-a-service solution, hosted software application, or other software subscription services that is expressly indicated in an applicable Order Form, as well as any associated configurations, features, and functionalities of the foregoing that are expressly detailed in the same Order Form.
   “Professional Services“ means the implementation, consulting and training services related to Subscription Services purchased by Customer from and supplied by Pivotree under an Order Form, which may be further detailed in a statement of work, schedule or similar document between Pivotree and the Customer, but excluding technical support in respect of the Product.
   “Reseller” means third party to whom Pivotree has granted the rights to promote and resell the Product.
   “Services“ means the Subscription Services and, where provided by Pivotree, any Professional Services.
   “Subscription Period“ means the implementation and ongoing subscription period specified in an initial Order Form and each subsequent renewal period(s).
   “Subscription Services“ means the deployment, operation, and access to the Product, as applicable, and any ancillary services (e.g. related support, hosting, configuration, monitoring, maintenance and reporting) for which Customer has expressly subscribed under an Order Form.
   “User“ or “Users“ means each individual that Customer permits to use the Subscription Services and to whom Pivotree or grants a User ID.
   “User ID“ means any login access and identification granted by Pivotree to Users to enable access to the Subscription Services.

2. ACCESS AND USE OF SERVICES.
   a. ACCESS.  Pivotree will provide the Customer with the Services set out in an applicable Order Form. Subject to these Terms and the applicable Order Form, Pivotree grants Customer and its Users access to the Subscription Services during the Subscription Period.
   b. SERVICE LEVELS. During the Subscription Period, Pivotree will make the Subscription Services available in accordance with the service levels specified in the applicable Order Form.
   c. ACCEPTABLE USE. The Customer will comply and will ensure that its Users comply with any Acceptable Use Policy, as such is referenced in the Order Form, and will not use the Subscription Services in any way that violates the Acceptable Use Policy, these Terms or any applicable law, including the Data Protection Laws. The Customer shall ensure Users are made aware of the Acceptable Use Policy and these Terms.
   d. USER IDs. The Customer will require all Users to keep their User IDs and associated passwords strictly confidential and to not share such information with any unauthorized person. For greater certainty, individual User IDs are specific to individual Users and may not be used by any other individuals to access the Subscription Services. Any sharing of passwords or User IDs shall be considered a material breach of these Terms.
   e. EQUIPMENT. Unless otherwise agreed as part of an Order Form, Customer shall be responsible for obtaining and maintaining any Equipment. The Customer shall also be responsible for obtaining and supplying all product information. 
   f. PROFESSIONAL SERVICES. If Customer has purchased Professional Services, such services will be set forth in an Order Form, a statement of work or other document entered into between the parties. Any modifications or extensions to a signed Order Form or statement of work related to Professional Services must be made pursuant to a project change request or similar amendment mutually agreed to in writing by the parties. Subject to payment of the applicable Fees, Pivotree grants Customer, all right, title and interest in and to all interviews and related transcripts, all written summaries and executive summaries prepared by Pivotree for Customer (the “Deliverables“). To the extent any Deliverables contain Pivotree Property (as defined below), Pivotree grants Customer a non-exclusive, worldwide, perpetual license for its internal business purposes, to use such Pivotree Property in connection with the Deliverables. Without limiting the foregoing, Pivotree may use aggregated and/or anonymized data or information derived from, or extracts of, any Deliverables, for Pivotree’s legitimate business purposes, provided that such data or information will not identify Customer or any individual or disclose any Confidential Information attributable to the Customer.
   g. SUBSCRIPTIONS PURCHASED THROUGH A RESELLER. The parties agree that the Customer may purchase through a Reseller the Subscription Services that are governed by these Terms. Orders for Subscription Services purchased through a third party Reseller, including multi-year subscriptions, are not subject to cancellation by Customer unless specifically agreed to by Pivotree in writing and subject to the terms agreed to by Pivotree. Where the Customer purchases a Subscription Service through a Reseller, the Reseller will enter into an Order Form with Pivotree for the purchase of the Subscription Services that references these Terms and shows the Customer as the “end user” party and Reseller as the “bill to” party, and Reseller and Customer will enter into a separate agreement setting forth the fees to be paid by Customer to Reseller for such Subscription, as well as any other terms or conditions that apply between them. Pivotree agrees that, subject to receiving payment from the Reseller, it shall be responsible to Customer, pursuant to the terms and conditions of this Agreement, for providing the Subscription Services under any such Order Form. Customer hereby acknowledges that Pivotree will not be responsible for the obligations of any of its Resellers to the Customer under any separate agreement, for the acts or omissions of a Reseller, or for any third party products or services furnished to Customer by any Reseller. For the avoidance of doubt, Sections 4 A., B., C., and D.  below will be of no effect where Customer purchases a Subscription Services through a Reseller, as payment and taxes will be addressed in the agreement between Reseller and Customer.

    

3. CUSTOMER DATA AND IP OWNERSHIP.
   a. CUSTOMER DATA. Subject to the license granted to Pivotree in this Section 3A, the Customer owns and will retain all right, title, interest to and ownership of Customer Data. The Customer grants Pivotree and its personnel a non-exclusive, worldwide, royalty-free, sublicensable, license during the Subscription Period to access, use, process, copy, distribute, perform, export, and display Customer Data solely and exclusively for the purposes of: (i) providing the Services to Customer and supporting the same, including storing, hosting, and managing Customer Data, as needed; and (ii) creating Pattern Data. Solely to the extent that reformatting Customer Data for use in or through the Services provided to Customer constitutes a modification or derivative work, the foregoing license also includes the right to make modifications and derivative works to and from Customer Data.
   b. CUSTOMER RESPONSIBILITY FOR CUSTOMER DATA. Customer will have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness of and copyright permissions for all Customer’s Data and for the compliance of such Customer Data (as provided by Customer to Pivotree) with these Terms and all applicable laws, including, without limitation, Data Protection Laws. In addition, Customer represents, warrants and covenants that it has, and will continue to have, the right to transfer, or provide access to, Customer Data for processing in accordance with these Terms, and that it will provide notices and obtain consents from its Users and customers relating to the collection, use, processing, transfer, storage and disclosure of Customer Data, as required and necessary by applicable laws, including Data Protection Laws. Pivotree will use the Customer Data “as is“, and is not responsible for reviewing, validating or otherwise confirming the accuracy, appropriateness or completeness of any Customer Data. The Customer may delete or request Pivotree to delete all or part of the Customer Data at any time from the Subscription Services.
   c. RIGHTS RESERVED BY PIVOTREE. Except as provided herein, the Services are made available to Customer on a limited access basis hereunder, and no ownership rights are granted to Customer. Pivotree and/or its licensors own and will retain all right, title, and interest, including all intellectual property rights, in and to the Subscription Services including all intellectual property rights in and to all inventions, methodologies, questionnaires, templates, techniques, surveys, knowledge or know-how in connection with the delivery of the Professional Services (the “Pivotree Property“), and any Pattern Data, as well as any updates, modifications, adaptations, translations, customizations or derivative works thereof or in relation thereto. All rights not expressly granted to Customer herein are reserved by Pivotree and/or its licensors.
   d. PATTERN DATA. Pivotree will ensure that Pattern Data authored, developed or created by Pivotree does not identify and it will not be possible to reverse engineer Pattern Data to ascertain any of the following: the identities of Customer, Users or any other individual or entity, any Customer Data or any other Customer Confidential Information. The Customer acknowledges and agrees that Pattern Data will not be considered and does not constitute Customer Data. Pivotree shall own all right, title and interest (including all intellectual property rights) in and to any Pattern Data.
   e. FEEDBACK. Customer grants to Pivotree a royalty-free, worldwide, transferable, sub-licensable, perpetual, unrestricted and fully paid-up license, including a waiver of moral rights where such are applicable, to use any Feedback for any purpose.

    

4. FINANCIALS
   a. FEES. The Customer will pay all undisputed invoiced amounts within thirty (30) days of the date of invoice, or as otherwise set out in an applicable Order Form. Fees are non-cancelable and non-refundable (except in accordance with Section 5D below).
   b. INVOICING. Pivotree will invoice the Fees for Professional Services in advance unless otherwise specified in the applicable Order Form. Pivotree will invoice the Fees for Subscription Services on a prorated basis during the first month of the Subscription Period of an applicable Order Form. Thereafter, ongoing Fees for Subscription Services will be invoiced in advance at the beginning of the month. Invoices will be sent via email (or as otherwise indicated in an Order Form), and Customer is responsible for keeping its contact and billing information up-to-date and accurate, including but not limited to a properly functioning and reachable email address and telephone number.
   c. LATE PAYMENT. If payment in full of undisputed amounts is not received within thirty (30) days of the date due as outlined in the Order Form, Pivotree may (i) suspend Customer’s and its Users’ access to the Services, and (ii) charge interest at the rate of 1.5% per month (18% per annum) or the highest rate allowed by applicable law, whichever is lower, until all due amounts are paid in full.
   d. TAXES. The Customer shall pay all applicable sales, use, value added, and other taxes and duties, of whatever nature, federal, state, provincial, or otherwise, which are levied or imposed by reason of this the Services. Customer shall promptly pay Pivotree for any such taxes and duties actually paid by Pivotree on behalf of Customer or which are required to be collected or paid by Pivotree. Notwithstanding the foregoing, the Customer will not pay for any taxes on Pivotree’s net income, employees or property.
   e. ACCESS AND USAGE. Pivotree may monitor Customer’s utilization of the Subscription Services as reasonably necessary to ensure Customer’s compliance with these Terms and in particular with the number of users or other applicable metric(s) specified on the Order Form (“Permitted Usage”). If Customer’s usage is shown to be in excess of Permitted Usage, Pivotree will notify Customer in writing and request that usage be brought back into compliance. Additional Fees may apply if not brought back into compliance, effective as of the time that Customer first exceeded Permitted Usage.
   f. CHANGES IN FEES. Pivotree may, at its sole discretion, change subscription fee rates applicable to the Services to be effective for the next Subscription Period. In the event of a change in the subscription fees, Pivotree, either directly or through any Reseller, endeavours to give advance written notice to Customer of such changes at least thirty (30) days prior to the applicable deadline for Customer’s notice of renewal or non-renewal as required pursuant to section 5A.

    

5. TERM AND TERMINATION.
   a. TERM. For each Order Form, unless either Customer or Pivotree provides notice of non-renewal at least sixty (60) days prior to the expiration of the then-current Subscription Period, the applicable Subscription Period will automatically renew for a further twelve (12) month period,  and, subject to Section 4F, at the applicable subscription pricing set out in such Order Form. The Customer may opt out of the foregoing automatic renewal at any time by providing notice to Pivotree, and such opt-out will be effective for the subsequent Subscription Period.
   b. TERMINATION FOLLOWING CHANGES TO SUBSCRIPTION SERVICES. Pivotree may add, change or remove features or functionality of the Subscription Services from time to time, including discontinuing services in their entirety (provided that Pivotree will promptly refund to Customer the unused portion of any prepaid fees if it discontinues the services in their entirety). In the event that, in its sole opinion acting reasonably, Pivotree introduces a change that materially changes the type or nature of the Subscription Services, Pivotree will notify Customer of such material change to the Subscription Services rendered hereunder with sixty (60) days advance notice. Upon notification, Customer shall have up to thirty (30) days to terminate the applicable Order Form, which termination shall be effective thirty (30) days from Pivotree’s receipt of Customer’s written notification. After thirty (30) days of receipt of notice from Pivotree, Customer is deemed to have accepted the material change to the Subscription Services.
   c. TERMINATION BY PIVOTREE. Pivotree may terminate any Order Form immediately upon written notice to the Customer: (i) in order to comply with applicable law or requests of governmental entities or (ii) if Pivotree determines in its sole discretion that the use of the Subscription Services by the Customer has become impractical or unfeasible for any legal, commercial or regulatory reason, provided that before terminating any Order Form pursuant to Section 5C, Pivotree shall (a) if not prohibited by law, provide Customer with at least thirty (30) days prior notice of its intent to terminate pursuant to this Section 5C and (b) engage in good faith negotiations with Customer regarding modifications to the nature and scope of the Subscription Services that would enable Pivotree to continue to provide the modified Subscription Services under the Applicable Order Form.
   d. TERMINATION FOR BREACH Each party may terminate a subscription, and all associated Order Forms, upon giving notice in writing to the other party if the non-terminating party commits a material breach of these Terms with respect to such subscription and has failed to cure such breach within thirty (30) days following a request in writing from the notifying party to do so.
   e. EFFECT OF TERMINATION. Upon termination of an Order Form: (i) all of the Customer’s rights and licenses under such Order Form pursuant to this Schedule and the Order Form will terminate on the effective date of termination; (ii) where termination is conducted under Sections 5B or 5C, Customer will remain responsible for all accrued Fees incurred by the Customer up to the effective date of termination and Pivotree will promptly refund to Customer the unused portion of any prepaid Fees; and (iii) where termination is conducted by Pivotree under Section 5D, Customer will remain responsible for all Fees up to the end of the Subscription Period.
   f. SURVIVAL Upon the expiration or termination of an Order Form or these Terms the provisions of Sections 1,5F,7,9,10,11, and 12 of these Terms, as well as any payment obligations accrued hereunder, will survive such expiration or termination.

    

6. MAINTENANCE AND TEMPORARY SUSPENSION.
   a. MAINTENANCE. Customer acknowledges and agrees that from time to time, it is necessary for Pivotree to temporarily suspend the use and access to the Subscription Services for maintenance purposes (“Temporary Service Suspension“). Such Temporary Service Suspensions will be performed during the maintenance window set forth in the applicable service level objectives (a set out in the Order Form or otherwise agreed in writing by Pivotree and Customer) or with forty-eight (48) hours‘ advance written notice, otherwise, the Temporary Service Suspension will not count against any uptime or other service level obligations.
   b. SERVICE SUSPENSION. Pivotree may upon three (3) days’ prior written notice suspend the right of the Customer to access or use any portion or all of the Subscription Services, without penalty or liability, if Pivotree determines in its reasonable absolute discretion that Customer: (i) poses a security risk to the Subscription Services, (ii) may adversely impact the services of any other Pivotree customer, (iii) may subject Pivotree, the Customer or any third party to liability, (iv) has improperly or unlawfully used the Subscription Services, (v) has materially violated the terms of the Acceptable Use Policy, (vi) is in material breach of any of its obligations under this Schedule, including without limitation the Customer’s payment obligations; provided however that Pivotree may immediately suspend, without prior notice, if immediate suspension is reasonably necessary to protect the security, availability or integrity of the Subscription Services.  Pivotree will promptly reinstate access to the Subscription Services when the events giving rise to the suspension have been mitigated. Pivotree may also suspend Subscription Services where the suspension is necessary for critical unforeseen emergency maintenance not caused by Pivotree (“Emergency Suspension“) to prevent unscheduled downtime.  Pivotree will provide the Customer with reasonable notice of the Emergency Suspension where possible.  Any Emergency Suspension will not count against any uptime or other service level obligations.

    

7. CONFIDENTIALITY. Each party agrees to keep confidential and to protect the confidentiality of all Confidential Information disclosed or made available to such party by the other party.  Each party shall protect the Confidential Information disclosed to such party (the “Receiving Party”) by the other party (the “Disclosing Party”) in the same manner as such party protects the confidentiality of its own similar information and data and shall at all times exercise at least a reasonable degree of care in the protection of such Confidential Information in order to protect it from unauthorized use, access, or disclosure.  The Receiving Party will restrict access to the Confidential Information of the Disclosing Party to only those of its representatives and personnel required to enable the Receiving Party to undertake its obligations pursuant to these Terms. The Receiving Party shall cause each of its representatives and personnel who may access Confidential Information of the Disclosing Party to agree to confidentiality obligations substantially similar to those in these Terms. The obligations of confidentiality in these Terms shall not apply to any information that: (i) is generally publicly available at the time of its communication; (ii) is independently developed by the Receiving Party without reference to the Confidential Information of the Disclosing Party; (iii) becomes generally publicly available through no fault of the Receiving Party subsequent to the Disclosing Party’s communication to the Receiving Party; (iv) is in the Receiving Party’s possession free of any obligation of confidence at the time of the Disclosing Party’s communication to the Receiving Party; or (v) is lawfully communicated to the Receiving Party by a third party free of any obligation of confidentiality. This Section 7 will not be construed to prohibit the disclosure of Confidential Information if such disclosure is required by law or order of a court or other governmental authority. The Receiving Party agrees to give the Disclosing Party prompt notice (to the extent legally permitted) of the receipt of any subpoena or other similar request for such disclosure.  If these Terms are terminated, each party will return or destroy all Confidential Information in its possession or control to the other party. Notwithstanding the foregoing, the Receiving Party: (i) may retain one (1) copy of the Confidential Information to the extent such retention is required to demonstrate compliance with law, an order from a regulatory authority or other applicable judicial or governmental order, or a bona fide document retention policy; (ii) shall not be obligated to destroy electronically stored Confidential Information to the extent that it is contained in an archived computer system backup in accordance with its security and/or disaster recovery procedures, and (iii) may retain one copy of any Confidential Information  to the extent required to initiate or defend any litigation relating to these Terms or the disclosed information. Any Confidential Information that is not returned or destroyed shall remain confidential and subject to the confidentiality obligations of these Terms.

    

8. DATA PROTECTION AND SECURITY.
   a. DATA PROTECTION. Customer agrees that if Customer or any personal data submitted by Customer to Pivotree, or to the Subscription Services may be or becomes subject to Data Protection Laws, Customer shall be, at all times,considered the data controller (or equivalent) of any personal data and Pivotree shall only be considered a data processor (or equivalent) of such personal data, as such terms are defined in the applicable Data Protection Laws. The Customer will not collect, provide or otherwise use in any way in relation to the Services any special category or of personal data or similar designation as described in Data Protection Laws.
   b. SECURITY. Pivotree will maintain industry-standard administrative, physical, and technical safeguards to protect the security, confidentiality, and integrity of Customer Data. If Pivotree becomes aware of a breach of security that affects Customer Data or Personal Data, Pivotree shall promptly notify Customer and take all actions reasonably necessary to protect the Customer Data from unauthorized use or access and shall promptly correct its security system.

    

9. WARRANTIES.
   a. CUSTOMER WARRANTY. Customer represents and warrants that Customer Data and its use as authorized by Customer in these Terms will not violate any applicable laws, privacy rights or any third-party intellectual property rights. Customer further represents and warrants that (a) Customer is not under any pre-existing obligation inconsistent with the provisions of these Terms; (b) Customer will use the Services only for lawful purposes in compliance with all laws, rules and regulations (including without limitation any privacy and computer laws); (c) Customer will use the Services in accordance with these Terms, the Order Form and any other terms referenced therein; and (d) Customer has the right and authority to enter into these Terms.
   b. PIVOTREE WARRANTY. Subject to Section 9C, Pivotree represents and warrants that: (i) the Subscription Services will perform substantially in compliance with the Documentation; (ii) Professional Services will be delivered in a professional and workmanlike manner by personnel with sufficient skill, knowledge and experience to perform the Professional Services and will be delivered in accordance with any applicable Order Form; (iii) it owns or otherwise has sufficient rights in the Services to grant to Customer the rights to use the Services as specified pursuant to these Terms, and (iv) Customer Data shall be processed only as expressly set forth in these Terms. If the Services fail to comply with the warranty in Section 9B (i) and (ii), as the case may be, and Customer notifies Pivotree in writing during the Subscription Period of the nature of such non-compliance, Pivotree will make commercially reasonable efforts to promptly remedy such non-compliance without charge.  If Pivotree does not remedy the non-compliance within a reasonable period of time agreed to by the parties, Customer may terminate these Terms as they apply to the relevant Services and receive a prorated refund for such Services from the date Pivotree receives such notification. The foregoing remedy is Customer’s sole and exclusive remedy with respect to such warranties.
   c. WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, PIVOTREE DOES NOT MAKE ANY OTHER REPRESENTATIONS OR WARRANTIES HEREUNDER AND EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES IN CONNECTION WITH THESE TERMS, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, PIVOTREE EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE SERVICES (INCLUDING ALERTS AND RECOMMENDATIONS) IS ACCURATE OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER. PIVOTREE FURTHER EXPRESSLY DISCLAIMS ANY LIABILITY THAT MIGHT ARISE FROM CUSTOMER COLLECTING, PROVIDING OR OTHERWISE USING IN RELATION TO THE SERVICES ANY SPECIAL CATEGORY OF PERSONAL DATA AS DESCRIBED IN ANY APPLICABLE DATA PROTECTION LAWS. PIVOTREE DOES NOT PROVIDE ANY WARRANTIES OR REMEDIES FOR ANY BETA VERSIONS OF THE SUBSCRIPTION SERVICES OR ANY FEATURE OF THE SUBSCRIPTION SERVICES IN BETA OR IN A TRIAL VERSION, PROVIDED CUSTOMER IS NOTIFIED THAT THEY ARE ACCESSING A FEATURE OF THE SUBSCRIPTION SERVICES IN BETA OR IN A TRIAL VERSION.  BETA AND TRIAL VERSIONS ARE OPTIONAL AND ARE USED AT CUSTOMER’S OWN RISK.

    

10. INDEMNITIES.
    a. PIVOTREE IP INDEMNITY. Subject to the Customer’s compliance with Section 10C, Pivotree will defend Customer from and against and settled any unaffiliated third-party claim brought against the Customer alleging that the Services (or use thereof) infringe such third-party’s valid patent or copyright or misappropriates such third-party’s trade secret (an “Infringement Claim”) and will pay any damages awarded through a final non-appealable judgment against Customer or agreed to via settlement approved by Pivotree in connection with any such Infringement Claim. Notwithstanding the foregoing, Pivotree will have no liability for any Infringement Claim to the extent it arises from: (i) a modification of the Services by or at the direction of any person other than Pivotree; (ii) use of the Services in violation of these Terms (including the Acceptable Use Policy) or applicable law; (iii) use of the Services after Pivotree notifies Customer to discontinue use because of an infringement or misappropriation claim; or (iv) the combination, operation, or use of the Services with any other software, program, or device not provided or specified by Pivotree, to the extent such infringement would not have arisen but for such combination, operation or use. If the Services or any part thereof have become, or in Pivotree’s opinion are likely to become, the subject of any Infringement Claim, Pivotree may, at its option and expense: (a) procure the right for Customer’s continued use of Services; (b) substitute substantially functionally similar Services; or (c) terminate Customer’s right to continue using the Services upon thirty (30) days’ written notice and refund any prepaid amounts for the terminated portion of the Subscription Period. This Section states Pivotree’s entire liability and Customer’s exclusive remedy in respect of any Infringement Claims relating to the Services or their use.
    b. CUSTOMER INDEMNITY. Subject to Pivotree’s compliance with Section 10C, Customer will defend Pivotree from and against any third-party claim brought against Pivotree arising from or related to (i) any Customer Data, or (ii) Customer’s breach of these Terms, (collectively, “Pivotree Claims”) and will pay any damages awarded through a final non-appealable judgment against Pivotree or agreed to via settlement approved in writing by Customer in connection with any such Pivotree Claims.
    c. CONDITIONS OF INDEMNIFICATION. Each Party’s indemnification obligations in this Section 10 are conditioned upon (i) the indemnified party (the “Indemnified Party”) notifying the indemnifying party (the “Indemnitor”) promptly of any threatened or pending indemnified claim (“Claim”), (ii) the Indemnified Party giving the Indemnitor reasonable assistance and information requested by the Indemnitor in connection with the defense or settlement of the Claim, and (iii) the Indemnitor having sole control over the defense of the Claim. The Indemnified Party may participate in the defense of the Claim at the Indemnified Party’s own expense. The Indemnified Party will not, without the prior written consent of the Indemnitor, settle, compromise or consent to the entry of any judgment with respect to any pending or threatened Claim.

     

11. LIMITATIONS ON LIABILITY.
    a. IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE SERVICES (WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE LAST EVENT GIVING RISE TO LIABILITY.   THE FOREGOING LIMITATIONS ON LIABILITY SHALL NOT APPLY TO: (A) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10; (B) A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 7; (C) CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 4 OR (D) CUSTOMER’S VIOLATIONS OF THE USE RESTRICTIONS SET FORTH IN THESE TERMS OR ANY ORDER FORM.
    b. IN NO EVENT WILL EITHER CUSTOMER OR PIVOTREE HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY LOST PROFITS, REVENUES, GOODWILL OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
    c. BASIS OF THE BARGAIN. THE ALLOCATIONS OF LIABILITY IN THIS SECTION 11 REPRESENT THE AGREED AND BARGAINED FOR UNDERSTANDING OF THE PARTIES, AND THE COMPENSATION OF PIVOTREE FOR THE PRODUCTS, SERVICES AND/OR SUBSCRIPTION SERVICES PROVIDED HEREUNDER REFLECTS SUCH ALLOCATIONS. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS IN ITS ESSENTIAL PURPOSE.

12. MISCELLANEOUS.
    a. ASSIGNMENT. These Terms are not transferable or assignable without the prior written consent of Pivotree These Terms shall be binding upon and inure to the benefit of each party’s successors and permitted assignees.
    b. ENTIRE AGREEMENT. These Terms, together with the applicable Order Form and any documents referenced therein, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all other agreements of any kind related thereto. Pivotree may update these Terms from time to time and will attempt to provide notices to any Customer of any such material updates by email or by providing an in-product notification. Customer’s continued use of the Services will be deemed acceptance of such updates. The terms of any Customer purchase order or other ordering document will not apply, even if delivered after execution of the Order Form. Except where otherwise specifically indicated with reference to this Section 12, in the event of any conflict or inconsistency, the following order of precedence applies: (a) these Terms, (b) the applicable Order Form, and (c) any other exhibit or other attachment hereto.
    c. FORCE MAJEURE. Except for payment obligations, neither party will be liable to the other for any delay or failure to perform any obligation under these Terms if the delay or failure is due to events which are beyond the reasonable control of such party, including but not limited to acts of God, acts of government, flood, fire, pandemics, earthquakes, civil unrest, acts of terror, strikes or other labour problems, or the unavailability of third party-provided cloud hosting services  (“Force Majeure Event”).
    d. PUBLICITY. Unless Customer provides Pivotree with written notice to the contrary, Customer also grants Pivotree the right to use its name and logo on Pivotree’s website and marketing materials to identify Customer as a customer of Pivotree.
    e. GOVERNING LAW AND JURISDICTION.  These Terms and any action related thereto shall be governed by and construed in accordance with the laws of the Province of Ontario, Canada and the Canadian federal laws applicable therein without regard to conflicts of law principles.
    f. INDEPENDENT CONTRACTOR. The parties’ relationship is that of independent contractors, and neither party is an agent or partner of the other, by virtue of these Terms or otherwise. Nothing herein shall be deemed or construed to create any employment, agency or fiduciary relationship between the parties. Each party shall be solely responsible for the supervision, direction, control and payment of its personnel, including, without limitation, for taxes, deductions and withholdings, compensation and benefits, and nothing herein will be deemed to result in either party having an employer-employee relationship with the personnel of the other party.
    g. NOTICES. Any notice under these Terms must be given in writing. The parties’ respective addresses are as indicated in the applicable Order Form or as otherwise subsequently notified in accordance herewith. Either party may provide notice to the other party by email, by registered or certified mail.  Pivotree may also provide notice via an in-product notification. All notices shall be effective (a) if mailed, on the fifth business day following such mailing; or (b) if sent by email or otherwise provided in-product, on the business day of the date of such transmission, posting or provision, provided that for delivery by email, no automated or other response is received indicating non-delivery or the absence of the recipient.
    h. SEVERABILITY. Any provision hereof found by a tribunal or court of competent jurisdiction to be illegal or unenforceable shall be automatically conformed to the minimum requirements of law and all other provisions shall remain in full force and effect.