End User Software Agreement
NOTICE TO ALL USERS: please read this agreement carefully. By execution of this agreement or by any use of the Software Services, Licensee: (i) agrees to accept all of the terms and conditions of this agreement; and (ii) Licensee agrees that this agreement is enforceable to the fullest extent permissible as if it had been signed by Licensee. If Licensee does not agree to all of the terms of this agreement, do not install or continue to use the software services.
The parties agree as follows:
"SaaS" means the following software-as-a-service product(s) offered by Pivoten, including any updates or enhancements thereto:
"SaaS Site" means the location designated by Pivoten for the necessary software and hardware, which is owned and operated by Pivoten, on which the SaaS resides.
"Software Services" means the specific SaaS product(s) selected by Customer at the time of Customer's registration for SaaS product(s) and which are provided by Pivoten and used by Licensee pursuant to this Agreement.
"Confidential Information" means any and all non-public proprietary and/or confidential information of the disclosing party, including, without limitation, trade secrets, know-how, inventions, techniques, processes, algorithms, software, designs and any other proprietary intellectual property.
"Licensee Data" means any data or information uploaded or provided by Licensee in connection with its use of the Software Services.
Pivoten, LLC ("Pivoten") hereby grants Licensee a revocable, non-exclusive, non-transferrable license to use the Software Services, provided that Licensee is only permitted to use the Software Services exclusively by its own employees and for its own operations. If any parent company, subsidiary, or other affiliate of Licensee desires to use the Software Services or any other SaaS, they are required to enter into a separate License Agreement with Pivoten.
Licensee acknowledges that this Agreement is a service agreement and Pivoten will not be delivering copies of any SaaS to Licensee as part of the Software Services. Licensee acknowledges and agrees that Licensee must notify Pivoten prior to use of the Software Services at any affiliate location and shall pay a separate license fee for each affiliate for which the Software Services are used.
Licensee acknowledges that it will not use the Software Services or any third-party software for any illegal purpose or activity. Licensee stipulates and agrees: that Licensee will only access and use the Software Services from the SaaS Site; will not download, copy, duplicate or compile any SaaS; and that no copyright or other ownership right or interest in and to any of the SaaS is granted, conveyed or otherwise received by Licensee.
Each party agrees to comply with applicable laws. Further, any specific record retention schedules established under applicable laws applicable to Licensee are the responsibility of Licensee and are not the responsibility of Pivoten or the Software Services being provided under the Agreement. Pivoten has no responsibility or liability for maintaining or retaining said records for Licensee.
Licensee input. Licensee is solely responsible for collecting, inputting and updating all Licensee Data utilized, uploaded, input or otherwise used by Licensee in connection with or relating to Licensee's use of the Software Services. Licensee is also solely responsible for ensuring that the Licensee Data does not (i) include anything that actually or potentially infringes or misappropriates the copyright, trade secret, trademark or other intellectual property right of any third-party, or (ii) contains anything that is offensive, corrupting, or malicious.
Licensee shall:
Licensee hereby grants to Pivoten a limited non-exclusive and non-transferable license to copy, store, configure, perform computations, manipulate, display and transmit all Licensee Data as reasonably necessary to provide the Software Services to Licensee.
This License is effective upon acceptance by Licensee and the license granted for the Software Services remains in force until:
Licensee acknowledges and agrees that Licensee is solely responsible for backing up any and all Licensee Data utilized, uploaded, input or otherwise used by Licensee in connection with and relating to Licensee's use of the Software Services and Licensee is solely liable for any loss, corruption or failure to backup any such Licensee Data.
Licensee shall have thirty (30) days following termination of this Agreement to export, report, or backup all Licensee Data. Pivoten reserves the right to delete all Licensee Data after sixty (60) days.
Licensee must pay all license fees, subscription fees, launch fees, consulting services fees, or other fees, plus applicable taxes, as specified on the Pivoten invoice for the given Software Services. Fees shall be paid by Licensee to Pivoten on such payment schedule, in such amounts and in accordance with the pricing plan chosen by Licensee during the registration process.
Licensee payments are non-refundable. Any Amounts not paid within thirty (30) days after the date such amounts are due and payable shall bear interest at a rate of one and one-half percent (1.5%) per month.
Pivoten may increase the fees and/or change pricing plans at any time and from time to time upon not less than thirty (30) days' notice to Licensee.
Pivoten will provide the Software Services at Pivoten's SaaS Site. Pivoten reserves the right to change the location of the SaaS Site if it deems necessary. Licensee acknowledges that the Software Services may modified, updated, changed from time to time or discontinued at Pivoten's sole discretion.
Pivoten reserves the right to make technological changes to the Software Services such as bug fixes and other updates. Pivoten is under no obligation to retain or continue use of prior versions of the Software Services. Pivoten will use reasonable efforts to provide written notice of such modifications, updates, changes or discontinuations to the Software Services within a reasonable time frame.
Pivoten will provide support services for the Software Services licensed to and utilized by Licensee in accordance with the Pivoten Support Policy, which can be viewed and printed at https://pivoten.com/support-policy ("Support Policy"), which Support Policy is incorporated herein by this reference. Licensee acknowledges and agrees that Pivoten may amend and modify its Support Policy from time to time, in Pivoten's sole discretion.
Pivoten may suspend the Services if any amount that Licensee owes Pivoten is more than sixty (60) days overdue. Pivoten will provide Licensee with at least five (5) days prior written notice that the Licensee's account is overdue before Pivoten suspends the Software Services. Upon payment in full of all overdue amounts, Pivoten will restore the Software Services, within not more than five (5) days.
Pivoten shall have the right to immediately terminate this License if Licensee fails to perform any obligation required of Licensee under this License or if Licensee becomes bankrupt or insolvent. Suspension or termination of Software Services shall not release Licensee of its payment obligations under this Agreement.
Licensee agrees that Pivoten shall not be liable to Licensee or to any third-party for any liabilities, claims or expenses arising from or relating to any suspension or termination of the Software Services pursuant to the terms of this Agreement.
Pivoten reserves the right to suspend delivery of the Software Services if Pivoten reasonably concludes that Licensee is causing immediate and ongoing harm to Pivoten or others including but not limited to violations of intellectual property rights, non-compliance with laws and regulations, and or Government or Court orders. In the extraordinary case that Pivoten must suspend Software Services for such cause, Pivoten shall immediately notify Licensee of the suspension and the parties shall diligently attempt to resolve the issue.
Pivoten retains any and all rights, title to, and interest in and to the Software Services, all other SaaS now or hereafter owned and offered by Pivoten, and all enhancements, modifications and updates thereto (including ownership of all trade secrets, design marks, trademarks, copyrights, and any and all intellectual property rights pertaining thereto).
Licensee will make no efforts to reverse engineer the Software Services, or make any modifications or enhancements without Pivoten's express written consent. Any attempts to reverse engineer or modify the Software Services by Licensee will constitute a breach of this Agreement.
THE SOFTWARE SERVICES ARE PROVIDED TO LICENSEE "AS IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITED UNDER APPLICABLE LAW, PIVOTEN, ON ITS OWN BEHALF AND ON BEHALF OF ANY AFFILIATES EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SOFTWARE SERVICES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE.
WITHOUT LIMITATION TO THE FOREGOING, PIVOTEN PROVIDES NO WARRANTY OR UNDERTAKING AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SOFTWARE SERVCES WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILLBE CORRECTED.
SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
PIVOTEN SHALL NOT BE LIABLE TO LICENSEE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE OR LIQUIDATED DAMAGES OF ANY KIND OR CHARACTER HOWSOEVER ARISING INCLUDING, BUT NOT LIMITED TO, INDIRECT DAMAGES, ANY DAMAGES FOR LOST TIME, INCOME, REVENUE, CLIENT GOODWILL, LOSS OF DATA, PROFITS OR OTHER SIMILAR ITEMS, OR ANY BUSINESS INTERUPTION OF ANY KIND, WHETHER BASED IN CONTRACT, WARRANTY, INDEMNITY, NEGLIGENCE, STRICT LIABILITY OR OTHER TORT OR OTHERWISE, UNDER OR WITH RESPECT TO THIS AGREEMENT OR THE CONTRACT DOCUMENTS, OR FROM ANY FAILURE OF PERFORMANCE RELATED THERETO, EVEN IF LICENSEE HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE AND EVEN IF A REMEDY SET FORTH IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL PIVOTEN OR ANY AFFILIATE HAVE ANY LIABILITY ARISING FROM OR RELATING TO LICENSEE'S USE OF OR INABILITY TO USE THE SOFTWARE SERVICES OR THE CONTENT, THE SERVICES, THE PERFORMANCE OR FUNCTION OF THE SERVICES, OR ANY CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT FOR:
DIRECT DAMAGES ARE LIMITED TO, AND IN NO EVENT SHALL EXCEED, THE FEES PAID BY THE LICENSEE FOR THE DURATION OF THE AGREEMENT OR FOR THE TWELVE (12) MONTH PERIOD IMMEDIATLEY PRECEEDING THE EVENT GIVING RISE TO THE CLAIM, WHICHEVER IS LESS.
The foregoing limitations will apply whether such damages arise out of breach of contract, tort (including negligence), or otherwise and regardless of whether such damages were foreseeable or Licensee was advised of the possibility of such damages. Some states do not allow certain limitations of liability, so some or all of the above limitations of liability may not apply to you.
LICENSEE AGREES to indemnify, defend and hold harmless Pivoten and its officers, directors, employees, agents, affiliates, successors and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys' and experts' fees arising from or relating to use or misuse of the SOFTWARE SERVICES or licensee's breach of this agreement, including but not limited to the data, information and content Licensee uploads, submits and/or makes available through the SOFTWARE SERVICES.
Licensee will treat the Software Services as trade secrets and proprietary know-how belonging to Pivoten that is being made available to Licensee in confidence. Licensee agrees to treat the Software Services with at least the same care as it treats its own confidential or proprietary information.
Licensee shall be solely responsible for compliance with all applicable government regulations regarding data protection and privacy for any and all License Data including but not limited to HIPPA, GLBA, and FERPA and for the utilization or granting access privileges to the Software Services to meet Licensee's own regulatory requirements.
This License shall be governed by and interpreted under the laws of the State of Indiana, United States of America, without regard to conflicts of law provisions. Any dispute or legal action related to the subject matter of this License shall be resolved in the Federal or state courts of appropriate jurisdiction located within Vanderburgh County, Indiana.
The parties consent to the jurisdiction of such courts, agree to accept service of process by mail, and waive any jurisdictional or venue defenses otherwise available.
If any legal action is necessary to enforce this License, the prevailing party shall be entitled to reasonable attorneys' fees, costs, and expenses in addition to any other relief to which it may be entitled.
The parties agree as follows:
Complete Agreement: This Agreement together with all schedules referred to herein, all of which are incorporated herein by reference, constitutes the sole and entire agreement between the parties. This Agreement supersedes all prior understandings, agreements, representations, and documentation relating to the subject matter of this Agreement.
Waiver: No waiver by either party of any default shall be deemed as a waiver of any prior or subsequent default of the same or other provisions of this Agreement.
Notices: Any and all notices and other communications given in connection with this Agreement shall be in writing and shall be deemed given as follows:
No Agency: Nothing contained herein will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise between the parties.
The rights conferred by this Agreement shall not be assignable by the Licensee without Pivoten's prior written consent. Pivoten may impose a reasonable license fee on any such assignment.
Pivoten is not in the business of providing legal, financial, accounting, tax, health care, real estate, or other professional services or advice. Consult the services of a competent professional when you need any such types of assistance.
In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provision shall be enforced to the fullest extent permissible and the remaining portion of this Agreement shall remain in full force and effect.
The parties have read this Agreement completely and have had the opportunity to see the advice and assistance of competent legal counsel. In the event that ambiguity exists or is deemed to exist in any provisions of this Agreement, said ambiguity is not to be construed by reference to any doctrine calling for such ambiguity to be construed against the drafter of this Agreement.
No statement, action or omission of either of the parties hereto shall be considered to be a waiver of any right, including, but not limited by way of limitation, any failure of either party to insist upon the strict performance of any agreement, term or condition hereof, or to exercise any right or remedy consequent upon a breach thereof, during the continuation of any such breach shall constitute a waiver of any such breach or any such agreement, term or conditions.
All headings set forth herein are included for the convenience of reference only and shall not affect the interpretation hereof, nor shall any weight or value be given to the relative position of any part or provision hereof in relation to any other provision in determining such construction.
As used in this Agreement, the plural shall be substituted for the singular, and the singular for the plural, where appropriate; and words and pronouns of any gender shall include any other gender.
Except as stated herein otherwise, this instrument is the final agreement, contains the entire, complete and exclusive agreement between the parties concerning the subject matter set forth herein and supersedes all prior oral or written understandings, agreements or contracts, formal or informal, between the parties or otherwise relating to the Software Services.
Each individual executing this Agreement on behalf of a party represents and warrants that he or she is a duly authorized representative of such party and has full power, authority, and legal right to execute and deliver this Agreement on behalf of that party.
The execution, delivery, and performance of this Agreement by such individual has been duly authorized by all necessary corporate, company, or organizational action, and this Agreement constitutes a valid and binding obligation of the party, its employees, agents, successors and assigns upon whose behalf it is executed.
