Pivotal Tracker Web Services Agreement
Welcome to Pivotal Tracker, the agile project management tool operated by Pivotal Software, Inc. (“Pivotal”). By using or accessing any of the services offered through https://www.pivotaltracker.com or through the Pivotal Tracker iOS or Android applications (“Application”) (collectively, the services and Application are hereafter referred to as the “Service Offering(s)”), You agree to be bound by these terms of service between You and Pivotal (the “Agreement”).
If You do not agree to this Agreement, You must not use or access the Service Offering. If You are accepting this Agreement on behalf of an Organization (and not for You as individual), You represent and warrant that You have legal authority to bind that Organization, and You hereby enter into this Agreement on behalf of that Organization. “You” or “Your” means the entity accepting this Agreement and the individual accepting this Agreement on behalf of the entity. “Pivotal,” “we,” “us,” or “our” means (i) Pivotal Software, Inc., if You are located in the United States; or (ii) Pivotal Software International, if You are located in a country outside the United States. Capitalized terms used in the Agreement are defined throughout the Agreement and in this Section below.
“Account” means a group of Projects associated with a payment Plan. Accounts have one Account Owner, and can have as many Projects and Project Members as the Plan for the given Account allows.
“Account Owner” means the individual or Organization representative who is responsible for the payment and billing of a given Account.
“Confidential Information” means information, software and materials provided by Pivotal to You, including software, information and materials of third parties, which are in tangible form and labeled “confidential” or the like, or, information which a reasonable person knew or should have known to be confidential.
The following information shall be considered our Confidential Information whether or not marked or identified as such: Login Credentials, software, technical information and documentation relating to the Service Offerings that is not otherwise made generally available to the public by Pivotal.
“Content” means any and all applications, files, information, data, software, or other content uploaded to, published or displayed through the Service Offerings.
“Evaluation Trial” means the thirty (30)-day free evaluation trial that your first Account is automatically placed on upon Account creation.
“Intellectual Property Rights” means all worldwide intellectual property rights, including, without limitation, copyrights, trademarks, service marks, trade secrets, patents, patent applications, and moral rights, whether registered or unregistered.
“Login Credentials” mean any passwords, API tokens or other security credentials that enable Your access to the Service Offering.
“Organization” means the entity that is accepting this Agreement.
“Paid User” means an Organization or individual that subscribes to a for-pay Service Offering.
“Plan” means the plan that You select from Your Account’s Plans and Billing Page.
“Plans and Billing Page” means the description and pricing available for Your Account’s Service Offerings, which we may modify from time to time.
“Project” means a space to organize and collaborate around information in the form of user stories, with controlled access to specific individuals, or the public (for read only access), based on project access settings.
“Project Member” means a specific person, identified by their UserID, that has been explicitly invited to a Project.
“Services Description(s)” means any description of or information about the Service Offerings made available to You through https://www.pivotaltracker.com or any usage or access instructions that we provide to You and which we may modify from time to time.
“Subscription Fees” means the amount paid by You to Pivotal for the Service Offering for the Subscription Term.
“Subscription Term” means the time period during which You are provided access to the Service Offerings, as specified when you register for the Service Offerings.
“Third Party Content” means third party data, Content, services, or applications, including open source software.
“Third Party Terms” means the then-current version of the third-party terms applicable to any Third Party Content.
“Usage Data” means information regarding Your use of the Service Offerings, such as information on the amount of storage resources consumed, as well as collaborator and project counts.
“User” means an Organization or individual that subscribes to a free version of the Service Offering.
“UserID” means the email and username by which You identify your User Profile.
“User Profile” means the Your profile information including username, full name, email and other Login Credentials, provided to us by You and updated by You periodically.
“Your Content” means any Content published or displayed through the Service Offerings by You, or your Your authorized users (or otherwise through Your account). Your Content includes Relationship Data, but does not include Usage Data.
1. The Service Offering.
1.1 Generally . All access to, and use of, any Service Offerings are subject to the terms and conditions of this Agreement. We may deliver the Service Offering to You with the assistance of our affiliates, licensors and service providers. You will comply with all laws, rules and regulations applicable to Your use of the Service Offering, and with the Third Party Terms and the Service Descriptions.
1.2 Access to the Service Offering. You may access and use the Service Offering for solely Your own benefit (or the benefit of Your Organization). To access the Service Offering, You must register for the Service Offering and set up an authorized User Profile. You shall keep your Login Credentials confidential, User Profile accurate, complete and current as long as You continue to use the Service Offering. You agree and acknowledge that each User will be identified by a Login Credentials and that Login Credentials may only be used by one (1) individual. You may not share Login Credentials with other users. You are responsible for any use that occurs under your Login Credentials. If You believe an unauthorized user has gained access to Your Login Credentials, You shall notify us immediately. Neither we nor our affiliates are responsible for any unauthorized access to or use of Your account.
1.3 Changing Plans. Users may upgrade to a for-fee Plan at any time. Paid Users, as Account Owners, may upgrade their Plan at any time, upon payment of additional license fees as set forth in Pivotal's then-current price list (or as otherwise set forth on the Account’s Plans and Billing Page).
1.4 Customer Accounts. When You sign up for a Service Offering, Pivotal will create an Account. When you become a User by accepting an invitation to a Project or Account, You may create an Account. You may create multiple Accounts. The Account Owner shall remain the Organization representative who registers for the Service Offering unless the Account Owner designates another representative as the Account Owner. You may designate any other representative to be an Account administrator of Your Account. You are responsible for all activity occurring under Your Account. Each Account will be associated with one Plan. Pivotal reserves the right to modify any of its Plans. To collaborate You may create one or more Projects using the Service Offering. All Projects are associated with a single Account. Each Project may have one or more Project Member . You shall notify Pivotal immediately of any unauthorized use of any password, account, copying or access to the Service Offering. Each Customer shall have a unique UserID.
1.5 Third Party Content. As part of Your use of the Service Offering, You may be provided with access to Third Party Content under separate terms and/or with separate fees. We make this Third Party Content available on an “AS-IS” basis without indemnification or support and disclaim all warranties of any kind (including warranties of merchantability, fitness for a particular purposes, and non-infringement), express or implied. You are solely responsible for reviewing, accepting, and complying with any Third Party Terms and other restrictions applicable to the Third Party Content. All Third Party Terms are solely between You and the applicable third party. Pivotal does not endorse or assume any responsibility for any Third Party Content. If You access or use any Third Party Content, You do so at Your own risk. You expressly relieve Pivotal from any and all liability arising from Your use of any Third Party Content, and You agree that Pivotal shall not be responsible for any loss or damage of any sort arising from or relating to Your use of any Third Party Content.
1.6 Beta Features. We may make certain features or functionality within the Service Offering available to You on a beta basis. We provide these beta features and functions on an “AS-IS” basis without indemnification or support and disclaim all warranties of any kind (including warranties of merchantability, fitness for a particular purposes, and non-infringement), express or implied. Any beta features or functionality made available to You for evaluation do not constitute an implied commitment to offer to You or anyone such features and functionality as part of the Service Offering on a generally available basis.
1.7 Free/Open Source Software. To the extent any Service Offering contains open source software, the underlying open source code for such open source software components of the Service Offering may be made available to You under a combination of free or open source licenses, which can be found at https://www.pivotaltracker.com/policy/third_party_licenses. You may obtain a copy of these licenses and any source code (and modifications) that we are required to make available under these licenses (the “Source Files”) at https://www.pivotaltracker.com/policy/third_party_licenses. You may also obtain a copy of the applicable Source Files by sending a written request, with your name and address to: Pivotal Software, Inc., 3495 Deer Creek Road, Palo Alto, CA 94903. All such requests should clearly specify: Open Source Files Request, Attention: General Counsel. This offer to obtain a copy of the Source Files is valid for three years from the date you first acquired access to the Service Offering.
1.8 Relationship Data. We may collect Relationship Data. You agree that we may use and disclose Relationship Data to manage Your account, send You notifications, deliver services or information, bill You for purchased services, improve and develop new products and services, monitor compliance and provide support. We may further use and share Relationship Data to provide the Service Offering to you, including sharing with our affiliates as described above and entities who provide payment processing and other services to us necessary to enable us to support the Service Offering, and as required by applicable law.
1.9 Usage Data. We may generate, collect, store and use Usage Data for any purpose. You agree that, as between You and Pivotal, Pivotal owns all such Usage Data. By way of example, we use Usage Data to track and manage our infrastructure, network storage, and software for billing, capacity planning and other product forecasting, improvement and development purposes. We may further share Usage Data with our affiliates and third party providers to fulfill our contractual obligations such as software license consumption and reporting. You agree that we may use, analyze, and otherwise perform any operations on or in connection with Relationship Data, Usage Data and Your Content to provide the services to which You have subscribed under this Agreement. Without limiting the foregoing, unless prohibited by applicable law, we may aggregate Usage Data such that it is not reasonably identifiable with or to the customer to which it relates (“Aggregate Data”). We may use and disclose Aggregate Data for any purpose.
1.10 Disclosure of Data and Your Content. You agree that Pivotal may disclose Your Content, Relationship Data and Usage Data in the following circumstances: (a) to our affiliates and other entities of the Pivotal group of companies worldwide for the purposes set forth in this Agreement; (b) to Pivotal’s third-party service providers worldwide who provide services such as website hosting, data analysis, payment processing, order fulfillment, information technology and related infrastructure provision, customer service, email delivery, credit card processing, auditing and other similar services; (c) to a third party in the event of any reorganization, merger, sale, joint venture, assignment, transfer or other disposition of all or any portion of Pivotal’s business, assets or stock (including in connection with any bankruptcy or similar proceedings); and (d) as Pivotal believes to be necessary or appropriate: (i) under applicable law, including laws outside your country of residence; (ii) to comply with legal process; (iii) to respond to requests from public and government authorities including public and government authorities outside your country of residence; (iv) to enforce this Agreement; (v) to protect Pivotal’s operations or those of any of its affiliates; (vi) to protect Pivotal’s rights, privacy, safety or property, and/or that of Pivotal’s affiliates, You or others; and (vii) to allow Pivotal to pursue available remedies or limit the damages that Pivotal may sustain. For example, we may need to process Your Content (or provide it to one of our affiliates, services providers, or contractors) to prevent or address service or technical problems, to provide customer support, to detect, prevent or address fraud, technology or security issues, to protect against harm to the rights, property or safety of us, our users or the public, or to respond to a subpoena, warrant, audit or agency action.
In case of transfer of your personal data as defined by applicable data privacy laws to outside of the European Economic Area (“EEA”) or access of such data from outside the EEA we will apply reasonable legal protection. Such protection may for example include the implementation of European Commission (“EU”) Standard Contractual Clauses as published by the EU Commission or our membership to Safe Harbor, an agreement between the U.S. Department of Commerce and the EU Commission for transfers from the EEA to the United States.
2.1 Access to Your Content. You are solely responsible for Your Content. We are only acting as a passive conduit for the online distribution and publication of Your Content. The Service Offering performs operations on, and distributes, Your Content. You and Your authorized users retain all of your respective rights, title and interest in and to Your Content. Our rights to access and use Your Content are limited to those expressly granted in this Agreement. No other rights with respect to Your Content are implied. In terms of applicable data privacy laws we are acting as a data processor on your (the data controller’s) behalf regarding your content to the extent it constitutes personal data as per the applicable privacy laws.
2.3 Transfer of Your Content. You consent that we may store Your Content in the United States or any other country in which we have a data center in our discretion. By uploading Your Content into the Service Offering, You may transfer and access Your Content from around the world, including to and from the United States. To the extent You provide Your Content in connection with customer support, You consent that we may handle Your Content in any country in which we or our agents maintain facilities. It is Your responsibility to ensure that You comply with applicable law when You transfer data across geographies.
2.4 DMCA. It is our policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”). Our DMCA policy and procedure for notice and removal of allegedly infringing content can be accessed at http://pivotal.io/terms-of-use.
3. Acceptable Use
3.1 General Restrictions. You will not and will not permit any third party to, as solely determined by us: (a) use the Service Offering to violate or encourage the violation of the rights of others (including intellectual property rights); (b) use the Service Offering to engage in or promote gambling, pornography, illegal activities; (c) circumvent or violate the restrictions of the Service Offering as described in this Agreement or Services Descriptions; (d) reverse engineer, decompile, or otherwise attempt to derive source code from the Service Offering, unless we make the source code publicly available; (e) disable, interfere with, disrupt, or circumvent any aspect of the Service Offering, including the integrity or performance of the Service Offering, or third-party content or data provided through the Service Offering; (f) access or use the Service Offering in a way intended to avoid recurring fees or exceeding usage limits; or (g) resell, distribute, sublicense, or otherwise transfer the Service Offering to any third party. You must ensure that any of Your users comply with the terms of this Agreement, and You agree that if You become aware of any violation by one of Your users, You will terminate that user’s access to Your Content immediately.
3.2 Content Restrictions. You will not, and You will take steps to ensure that Your authorized users and third party users who access any service You provide with the Service Offering do not, post Content that: (a) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to an authorized user, or any other person or entity; (b) may create a risk of any other loss or damage to any person or property; (c) may constitute or contribute to a crime or tort; (d) contains any information or content that is unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, or otherwise objectionable; (e) contains any information or content that is illegal; or (f) contains any information or content that You do not have a right to make available under any law or under contractual or fiduciary relationships. You represent and warrant that the Content does not and will not violate third-party rights of any kind, including without limitation any Intellectual Property Rights, and rights of publicity and privacy. You shall ensure that Your use of the Service Offering complies at all times Your privacy policies and all applicable local, state, federal and international laws and regulations, including any encryption requirements.
3.3 Violations of Acceptable Use. If You become aware that any of Your Content or Your user’s use of Your Content violates Section 3.1 or 3.2 of this Agreement, You shall immediately suspend or remove the applicable Content or suspend access the end user’s access. If You fail to do so, we may ask You to do so. If You fail to comply with our request, we may suspend Your account or disable the applicable Content until You comply with our request.
4. IP Ownership of Service Offering and Rights to Feedback
4.1 Ownership of Service Offering. We and our licensors own and retain all right, title and interest in and to the Service Offering, including all improvements, enhancements, modifications and derivative works thereof, and all Intellectual Property Rights therein. This includes any information that we collect and analyze in connection with the Service Offering, such as usage patterns, user feedback and other information to improve and evolve our products and services offerings. Your rights to use the Service Offering are limited to those expressly granted in this Agreement. No other rights with respect to the Service Offering or any related Intellectual Property Rights are implied.
4.2 Feedback. If You provide comments, suggestions or other feedback to us regarding the Service Offering or Pivotal’s technology or business (the “Feedback”), You agree that we will be free to use any Feedback You provide for any purpose. You hereby grant to us a non-exclusive, perpetual, irrevocable, royalty-free, transferable, worldwide right and license, with the right to grant and authorize sublicenses, to use, reproduce, perform, display, disclose, distribute, modify, prepare derivative works of and otherwise use the Feedback without restriction in any manner now known or in the future conceived and to make, use, sell, offer to sell, import and export any product or service that incorporates or is based in whole or in part on the Feedback.
5. Payment and Taxes
5.1 Evaluation Trial. During the Evaluation Trial, You may associate an unlimited number of Projects and Project Members with Your Account, and the Account shall have access to the full functionality of the Service Offering. A credit card is not required for the Evaluation Trial. At the end of the Evaluation Trial, if You do not upgrade to a paid Plan, Your Account will transition to the free Plan as described on the Account’s Plans and Billing Page. If Your Account exceeds the limits associated with the free Plan, the Account will be suspended, and all Projects in the Account will become read-only until the Account is either (a) brought below the free Plan limits or (b) You purchase a paid Plan for which such Account qualifies. You may upgrade an Account to a paid Plan prior to the expiration of the Evaluation Trial, but Pivotal will not charge You until after the Evaluation Trial except as may be set forth on the Plans and Billing Page.
Only the first Account that You create will be subject to the Evaluation Trial. Additional Accounts that You create will start on the free Plan, as published on the Plans and Billing Page. You may not move Projects in or out of Accounts that are on the Evaluation Trial. You are entitled to only one Evaluation Trial. If You are an organization, only one Organization representative is entitled to receive the Evaluation Trial.
5.2 Subscription Fees. The amount of the Subscription Fees, if any, are determined by the Plan selected on the Plans and Billing Page. If a Paid User wants to add more features that are permitted under Paid User's Plan, the Paid User must upgrade to a Plan with higher member limits. Subscription Fees for the new Plan will be calculated on a pro-rated basis for the remainder of the Term as specified in more detail on the Plans and Billing Page. You are responsible for all taxes, other than taxes levied on Pivotal's income. Subscription Fees do not include any applicable taxes. If Pivotal is required to pay any sales, use, goods and services, value added, or other taxes in relation to Paid User's purchase, those taxes will be billed to and paid by Paid User.
5.3 Payment. Paid Users shall select either annual or monthly billing for the applicable Subscription Fees. Paid User shall pay the Subscription Fees to Pivotal on the date Paid User first upgrades to a paid Plan (the "First Upgrade Date") and on every monthly anniversary thereof (if Paid User has selected monthly billing) during the term of the Agreement and on every yearly anniversary of the Effective Date (if Paid User has selected annual billing) during the term of the Agreement. The fee schedule is set forth at http://www.pivotaltracker.com/why-tracker/pricing, and the Plans and Billing Page, and we may revise the schedules from time to time. We are not required to provide any fee-bearing Service Offering to You until You provide all information we require for processing your request. All Subscription Fees will be automatically billed to Paid User's credit card. You are agreeing to automatic credit card payments for each billing cycle applicable to Your subscription until You cancel Your Account by deleting Your Account from the Account settings. You will receive a transaction receipt at the end of every billing cycle. Paid User may upgrade from a paid Plan to another paid Plan at any point during the then-current term of the Agreement, and Paid User will be immediately charged, on a pro-rated basis, for the remainder of the then-current billing cycle. If (a) Paid User cancels or downgrades their Account, or (b) either party terminates the Agreement before the end of the then-current term, Pivotal shall not refund any fees to Paid User.
5.4 Taxes. Service Offering fees are exclusive of taxes, and You shall pay or reimburse us for all taxes arising out of transactions contemplated by this Agreement. You may not withhold any portion of payments due under this Agreement. “Taxes” means any sales, use, gross receipts, business and occupation, and other taxes (other than taxes on our income), export and import fees, customs duties and similar charges imposed by any government or other authority. You hereby confirm that we can rely on the name and address You provide to use when You sign up for the Service Offering or in connection with your payment method as being the place of supply for sales tax and income tax purposes or as being the place of supply for VAT purposes where You have established your business.
6. Temporary Suspension
6.1 Generally. We may suspend Your use of the Service Offering if we determine in our sole discretion: (a) payment for the Service Offering is delinquent by thirty (30) days from the date on which payment is due; (b) You or Your use of the Service Offering is in breach of this Agreement, including without limitation Section 3 (Acceptable Use); (c) You fail to address our request to take action as specified in Section 3.3; (d) Your use of the Service Offering poses a security risk to the Service Offering or other users of the Service Offering, or interferes with, disrupts, damages, or accesses in an unauthorized manner the servers, networks, or other properties or services of any third party including, but not limited to, Pivotal or any mobile communications carrier; or (e) suspension is required pursuant to our receipt of a subpoena or other request by a law enforcement agency.
6.2 Effect of Suspension. You will remain responsible for all fees incurred before or during the suspension.
7. Term and Termination
7.1 Term of Agreement. This Agreement will commence at the point you first access the Service Offering and will be effective through the Subscription Term, unless terminated earlier as permitted under the Agreement.
7.2 Termination for Cause. We may terminate this Agreement effective immediately if: (a) we determine, in our sole discretion, that any of the events described in Section 6.1(a), (c) or (d) have occurred or You have breached any of the provisions of Section 3 (Acceptable Use); (b) You breach a provision of this Agreement that is not capable of being cured, including Section 12 (Confidential Information); or (c) You breach any provision of this Agreement that is capable of being cured and don’t cure the breach within thirty (30) days after receiving an email identifying the breach from us.
7.3 Termination for Insolvency. We may terminate this Agreement effective immediately upon sending You an email notification of termination if You: (a) terminate or suspend your business; (b) become insolvent, admit in writing your inability to pay Your debts as they mature, make an assignment for the benefit of creditors; (c) become subject to control of a trustee, receiver or similar authority; or (d) become subject to any bankruptcy or insolvency proceeding.
7.4 Termination for Convenience. You may terminate this Agreement at any time by deleting Your user profile by email request to firstname.lastname@example.org.
7.5 Effect of Termination. Upon the termination of this Agreement for any reason: (a) all rights granted to you under this Agreement, including your ability to access any of Your Content stored in the Service Offering, will immediately terminate; and (b) You must promptly discontinue all access or use of the Service Offering and delete or destroy any of our Confidential Information. For a period of thirty (30) days following the termination, we will not delete Your Content as a result of this termination, although You will cease to have access to the Service Offering or Your Content during this period. Sections 1.7 (Free/Open Source Software), 1.8 (Relationship Data), 1.9 (Usage Data), 1.10 (Disclosure of Data and Your Content), 2 (Your Content); 3 (Acceptable Use), 4 (IP Ownership), 5 (Payment and Taxes), 7 (Term and Termination), 8 (Warranty Exclusion), 9 (Indemnification), 10 (Limitation of Liability), 11 (Confidential Information), 12 (Miscellaneous), and 13 (Country-Specific Terms), will survive the termination of this Agreement. Except as expressly provided in Section 7.4 (Termination for Convenience), termination of the Service Offering will not entitle you to any refunds, credits, or exchanges, and You will be liable for all monthly billing fees for the remainder of the Subscription Term after termination, as well as all usage and other fees incurred up to the termination date.
8. Warranty Exclusion
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE OFFERINGS ARE PROVIDED “AS-IS” AND “AS AVAILABLE.” WE AND OUR LICENSORS AND SERVICE PROVIDERS DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE) REGARDING OR RELATING TO THE SERVICE OFFERING, THE DOCUMENTATION, OR ANY MATERIALS OR SERVICES FURNISHED OR PROVIDED TO YOU UNDER THIS AGREEMENT. WE AND OUR LICENSORS AND SERVICE PROVIDERS DO NOT WARRANT THAT THE SERVICE OFFERING WILL OPERATE UNINTERRUPTED OR THAT THEY WILL BE FREE FROM DEFECTS OR THAT THE SERVICE OFFERINGS WILL MEET (OR ARE DESIGNED TO MEET) YOUR BUSINESS REQUIREMENTS.
You will defend and indemnify us against any third party claim arising from or relating to: (a) Your Content; (b) any infringement or misappropriation of any Intellectual Property Rights by You, Your customers or Your suppliers; (c) violation of law by You; (d) Your use of the Service Offering in violation of this Agreement, or (e) Your use of any Third Party Content. We will (i) provide you with notice of such claim within a reasonable period of time after learning of the claim; and (ii) reasonably cooperate in response to Your requests for assistance. You may not settle or compromise any indemnified claim without our prior written consent. The Service Offering is not provided with any protection or other coverage under Pivotal’s Open Source Indemnification Program.
10. Limitation of Liability.
10.1 Limitation of Liability. TO THE MAXIMUM EXTENT MANDATED BY LAW, IN NO EVENT WILL WE OR OUR LICENSORS BE LIABLE FOR ANY LOST PROFITS OR BUSINESS OPPORTUNITIES, LOSS OF USE OF THE SERVICE OFFERINGS, LOSS OF REVENUE, LOSS OF GOODWILL, BUSINESS INTERRUPTION, LOSS OF DATA; OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, UNDER ANY THEORY OF LIABILITY, AND WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE. IN ADDITION, OUR AND OUR LICENSORS’ LIABILITY UNDER THIS AGREEMENT WILL NOT, IN ANY EVENT, REGARDLESS OF WHETHER THE CLAIM IS BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EXCEED THE AGGREGATE FEES YOU PAID TO US FOR THE SERVICE OFFERINGS IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO YOUR CLAIM REGARDLESS OF WHETHER WE OR OUR LICENSORS OR SERVICE PROVIDERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW ALL OR SOME OF THE FOREGOING EXCLUSIONS OR LIMITATIONS OF LIABILITY, THE PRECEDING LIMITATION MAY NOT APPLY TO YOU.
10.2 Further Limitations. Our licensors and service providers shall have no liability of any kind under this Agreement and our liability with respect to any third party software or third party content provided with the Service Offerings is subject to Section 11.1 (Limitation of Liability).
11. Confidential Information
11.1 Protection. You may use Confidential Information disclosed by Pivotal solely as expressly permitted under this Agreement. You will disclose Confidential Information only to the employees, affiliates, service providers, or contractors of the recipient party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than each party’s duty hereunder. You will use at least the same degree of care you use to protect Your own confidential information of similar nature, but no less than reasonable care to protect the confidentiality of Confidential Information disclosed hereunder.
11.2 Exceptions. Your obligations under Section 12.1 with respect to any Confidential Information will terminate if You can show by written records that such information: (a) was already known to You at the time of initial disclosure to You; (b) was disclosed to You by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of recipient has become, generally available to the public; or (d) was independently developed by You without access to, or use of, Confidential Information disclosed hereunder. You may disclose Confidential Information to the extent that the disclosure is required by law or regulation. You shall provide us with notice, when practicable, and shall give us the opportunity to seek confidential treatment and take reasonable steps to contest and limit the scope of any required disclosure.
12.1 Construction. As used in this Agreement: (a) the terms “include” and “including” are meant to be inclusive and shall be deemed to mean “include without limitation” or “including without limitation”; (b) the word “or” is disjunctive, but not necessarily exclusive; (c) words used herein in the singular, where the context so permits, shall be deemed to include the plural and vice versa; (d) references to “dollars” or “$” shall be to United States dollars unless otherwise specified herein; and (e) unless otherwise specified, all references to days, months or years shall be deemed to be preceded by the word “calendar.” The headings of this Agreement are intended solely for convenience of reference and shall be given no effect in the interpretation or construction of this Agreement.
12.2 Governing Law . This Agreement is governed by: (i) the laws of California when Pivotal means Pivotal Software, Inc.; and (iii) the laws of Ireland when Pivotal means Pivotal Software International; provided that in each case, the foregoing shall exclude any conflict of law rules, and the U.N. Convention on Contracts for the International Sale of Goods shall not apply.
12.3 Successors and Assigns. This Agreement may not be assigned without the express written consent of the other party, not to be unreasonably withheld, conditioned or delayed, except that Pivotal may assign or transfer this Agreement, in whole or in part, without Your consent to any successors-in-interest to all or substantially all of the business or assets of Pivotal whether by merger, reorganization, asset sale or otherwise, or to any subsidiaries or affiliates of Pivotal. Any purported transfer or assignment in violation of this section is void. Subject to the foregoing restrictions, the terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective permitted successors and assigns of the parties.
12.4 Severability . If any provision of this Agreement becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable, or void, portions of such provision, or such provision in its entirety, to the extent necessary, shall be severed from this Agreement, and such court will replace such illegal, void or unenforceable provision of this Agreement with a valid and enforceable provision that will achieve, to the extent possible, the same economic, business and other purposes of the illegal, void or unenforceable provision. The balance of this Agreement shall be enforceable in accordance with its terms.
12.5 Waiver. Failure to enforce a provision of this Agreement will not constitute a waiver.
12.6 Independent Contractor. The parties are independent contractors. Nothing in this Agreement shall be construed to create a joint venture, partnership, or an agency relationship between the parties themselves or between the parties and any third person. Except as expressly provided herein, no party has the authority, without the other party’s prior written approval, to bind or commit any other party in any way.
12.7 No Third-party Beneficiaries. This Agreement is not intended to confer upon any person other than the parties hereto any rights or remedies hereunder.
12.8 Force Majeure. In the event that either party is prevented from performing or is unable to perform any of its obligations under this Agreement due to any Act of God, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, destruction of production facilities, riot, insurrection, material unavailability, unavailability or interruption of telecommunications equipment or networks, or any other cause beyond the reasonable control of the party invoking this section, and if such party shall have used reasonable efforts to mitigate its effects, such party shall give prompt written notice to the other party, its performance shall be excused, and the time for the performance shall be extended for the period of delay or inability to perform due to such occurrences.
12.9 Compliance with Laws; Export Control; Government Regulations. Each party shall comply with all laws applicable to the actions contemplated by this Agreement. You acknowledge that the Service Offering and all software and technical information relating thereto is of United States origin, is provided subject to the U.S. Export Administration Regulations, may be subject to the export control laws of the applicable territory, and that diversion contrary to applicable export control laws is prohibited. You represent that: (1) you are not, and are not acting on behalf of (a) any person who is a citizen, national, or resident of, or who is controlled by the government of any country to which the United States has prohibited export transactions, or (b) any person or entity listed on the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons, or the U.S. Commerce Department Denied Persons List or Entity List; and (2) you will not permit the Service Offering to be used for, any purposes prohibited by law, including, any prohibited development, design, manufacture or production of missiles or nuclear, chemical or biological weapons. If any software or related documentation is licensed to the United States government or any agency thereof, then the such software and documentation will be deemed to be commercial computer software and commercial computer software documentation,respectively, pursuant to DFARS Section 227.7202 and FAR Section 12.212, as applicable. Any use, reproduction, release, performance, display or disclosure of the software and any related documentation by the U.S. Government will be governed solely by this Agreement and is prohibited except to the extent expressly permitted by this Agreement.
12.10 Notices. Any notice, consent or other communication to be given under this Agreement by any party shall be in writing and shall be either (a) personally delivered, (b) mailed by registered or certified mail, postage prepaid with return receipt requested, (c) delivered by prepaid overnight express delivery service or same-day local courier service, or (d) via e-mail transmission, with receipt confirmed or a confirming copy sent via mail. Pivotal may also provide notice to You of changes in to this Agreement or Pivotal’s policies or procedures by posting such changes on our website. Pivotal’s e-mail notification to you shall be sent to the e-mail address you specify in your registration for the Services. You agree to direct notices or other correspondence to Pivotal Software, Inc., 3495 Deer Creek Road, Palo Alto, CA 94304, United States of America, Attn: email@example.com. Notices delivered personally, by overnight express delivery service, by local courier service, facsimile transmission or email shall be deemed given as of actual receipt. Mailed notices shall be deemed given seven (7) Business Days after mailing.
12.11 Limitations Period. All claims must be made within (i) the time period specified by applicable law; or (ii) eighteen (18) months after the cause of action accrues if no such period is specified at law.
12.12 Modifications. We may change periodically the Service Offering, the terms of Your access to the Service Offerings, this Agreement, and the Service Description. It is Your responsibility to regularly check the Service Offerings console for updates. We will notify You of any material detrimental change to the Service Offering or this Agreement by sending You an email or by posting a notice of the modification on the Service Offering console. The modified Agreement or Service Description, as applicable, will become effective as of the date stated in that notification. If we make a material detrimental change to the Service Offerings (other than the termination or modification of any beta feature or functionality), this Agreement, or the Service Description, You may terminate this Agreement within ten (10) days of the change or within ten (10) days of the notice; in that event, the termination will be effective as of the date we receive Your notification. We will refund to You any prepaid fees, pro-rated for the remainder of your Subscription Term. Your continued use of the Service Offering after the effective date of any modification to the Agreement, the Service Description, or the Third Party Terms shall be deemed acceptance of the applicable modification.
12.13 Entire Agreement. This Agreement (i) is the complete statement of the agreement of the parties with regard to the subject matter hereof; and (ii) may be modified only by a writing signed by both parties. All terms of any purchase order or similar document provided by You, including but not limited to any pre-printed terms thereon and any terms that are inconsistent or conflict with this Agreement, shall be null and void and of no legal force or effect.
12.14 iOS-Specific Terms. The following terms apply only if You downloaded the Pivotal Tracker iOS application (“Application”) and are using it in connection with the Service Offering. To the extent there are any terms in this Section 12.14 that are inconsistent or conflict with the other sections of this Agreement, the following terms shall be null and void and of no legal force or effect.
12.14.1 Acknowledgment. The parties acknowledge that this Agreement is concluded between Pivotal and You only, and not with Apple, and that We, not Apple, are solely responsible for the Application and the content thereof.
12.14.2 Scope of License. To the extent there is any license granted to You herein, it is limited to a non-transferable license to use the Application on any iPhone or iPod touch that You own or control and as permitted by the Usage Rules set forth in the Apple App Store Terms of Service.
12.14.3 Maintenance and Support. Subject to Section 8 [Warranty Exclusion], in the event of any failure of the Application to conform to any applicable warranty, You may notify Apple, and Apple will refund the purchase price for the Application (if any) to You. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Your sole responsibility.
12.14.4 Product Claims. Pivotal and You acknowledge that Pivotal, not Apple, is responsible for addressing any claims by You or any third party relating to the Application or Your possession and/or use of the Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
12.14.5 Intellectual Property Rights. You and Pivotal acknowledge that, in the event of any third party claim that the Application or Your possession and use of the Application infringes that third party’s intellectual property rights, Pivotal, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
12.14.5 Third Party Beneficiary. You and Pivotal acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and that, upon Your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement against You as a third party
13. COUNTRY SPECIFIC TERMS [IRELAND].
The terms in this Section 13 apply only when Pivotal means Pivotal Software International and for the avoidance of doubt these terms below shall replace the terms in the Agreement above as specifically stated and all other terms shall remain unchanged:
13.1 Section 8 (WARRANTY EXCLUSIONS). The entire section is deleted and replaced with:
8. WARRANTY EXCLUSIONS. EXCEPT AS EXPRESSLY STATED IN THE APPLICABLE WARRANTY SET FORTH IN THIS AGREEMENT, PIVOTAL (INCLUDING ITS SUPPLIERS) MAKES NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, WRITTEN OR ORAL. INSOFAR AS PERMITTED UNDER APPLICABLE LAW, ALL OTHER WARRANTIES AND CONDITIONS ARE SPECIFICALLY EXCLUDED, INCLUDING WARRANTIES AND CONDITIONS ARISING BY STATUTE, COURSE OF DEALING OR USAGE OF TRADE.
13.2 Section 10 (LIMITATION OF LIABILITY). The entire section is deleted and replaced with:
10. LIMITATION OF LIABILITY.
10.1 In no event shall Pivotal (including its suppliers) be liable to You however that liability arises, for the following losses, whether direct, consequential, special, incidental, punitive or indirect: (A) loss of actual or anticipated revenue or profits, loss of use, loss of actual or anticipated savings, loss of or breach of contracts, loss of goodwill or reputation, loss of business opportunity, loss of business, wasted management time, cost of substitute services or facilities, loss of use of any software or data; and/or (B) indirect, consequential, exemplary or incidental or special loss or damage; and/or (C) damages, costs and/or expenses due to third party claims; and/or (D) loss or damage due to Your failure to comply with obligations under this Agreement, failure to do back-ups of data or any other matter under Your control and in each case whether or not any such losses were direct, foreseen, foreseeable, known or otherwise, and whether or not that party was aware of the circumstances in which such losses could arise. For the purposes of this Section 11, the term “loss” shall include a partial loss, as well as a complete or total loss.
10.2 The parties expressly agree that should any limitation or provision contained in this Section 11 be held to be invalid under any applicable statute or rule of law, it shall to that extent be deemed omitted, but if any party thereby becomes liable for loss or damage which would otherwise have been excluded such liability shall be subject to the other limitations and provisions set out in this Section 11.
10.3 Your Obligations In Respect Of Preservation Of Data. During the term of this Agreement You shall: (A) from a point in time prior to the point of failure, (i) make full and/or incremental backups of data which allow recovery in an application consistent form, and (ii) store such back-ups at an off-site location sufficiently distant to avoid being impacted by the event(s) (e.g. including but not limited to flood, fire, power loss, denial of access or air crash) and affect the availability of data at the impacted site; (B) have adequate processes and procedures in place to restore data back to a point in time and prior to point of failure, and in the event of real or perceived data loss, provide the skills/backup and outage windows to restore the data in question; (C) use anti-virus software, regularly install updates across all data which is accessible across the network, and protect all storage arrays against power surges and unplanned power outages with uninterruptible power supplies; and (D) ensure that all operating system, firmware, system utility (e.g. but not limited to, volume management, cluster management and backup) and patch levels are kept to Pivotal recommended versions and that any proposed changes thereto shall be communicated to Pivotal in a timely fashion.
13.3 Section 12.11 (LIMITATION PERIOD). The entire section is deleted and replaced with:
12.11 Waiver of Right to Bring Actions. You waive the right to bring any claim arising out of or in connection with this Agreement more than twenty-four (24) months after the date of the cause of action giving rise to such claim.
This Agreement was last updated on January 14, 2016.