Terms and Conditions of Sale

These Terms and Conditions of Sale (the “Contract”) describe your rights and responsibilities when using our online collaboration tools and platform (the “Services”). Please read them carefully. If you are a Customer (defined below), these Customer Terms govern your access and use of our Services. If you are being invited to a space set up by a Customer, the Pivot Terms of Service (the “Terms of Service”) govern your access and use of the Services. “We,” “our” and “us” refers to Pivot Technologies Holdings Inc., a Delaware corporation.

1. Definitions and Context

If you purchase subscription(s), create a Pivot Organization(i.e., a digital space where a group of users may access the Services), invite users to that Pivot Organization, or any of the spaces within that organization, or use or allow use of that Pivot Organization and its spaces after being notified of a change to these Customer Terms, you acknowledge your understanding of the then-current Contract and agree to the Contract on behalf of Customer. Please make sure you have the necessary authority to enter into the Contract on behalf of Customer before proceeding.

a. Customer Choices and Instructions

The Customer is the organization that you represent in agreeing to the Contract. If your Pivot Organization is being set up by someone who is not formally affiliated with an organization, Customer is the individual creating the Pivot Organization. For example, if you signed up using a personal email address and invited a couple of friends to work on a new startup idea but haven't formed a company yet, you are the Customer.

b. Signing Up Using a Corporate Email Domain

If you signed up for a plan using your corporate email domain, your organization is Customer, and Customer can modify and re-assign roles on your Pivot Organization (including your role) and otherwise exercise its rights under the Contract. If Customer elects to replace you as the representative with ultimate authority for the Pivot Organization, we will provide you with notice following such election and you agree to take any actions reasonably requested by us or Customer to facilitate the transfer of authority to a new representative of Customer.

c. Authorized Users

Individuals authorized by Customer to access the Services (an “Authorized User”) may submit content or information to the Services, such as messages or files (“Customer Data”), and Customer may exclusively provide us with instructions on what to do with it. For example, Customer may provision or deprovision access to the Services, enable or disable third party integrations, manage permissions, retention and export settings, transfer or assign spaces, share rooms, or consolidate Pivot Organizations or Spaces with other Pivot Organizations or Spaces.

Customer will (a) inform Authorized Users of all Customer policies and practices that are relevant to their use of the Services and of any settings that may impact the processing of Customer Data; and (b) ensure the transfer and processing of Customer Data under the Contract is lawful.

2. Ordering Subscriptions

A subscription allows an Authorized User to access the Services. No matter the role, a subscription is required for each Authorized User. A subscription may be procured through the Services interface, or in some cases, via an order form entered into between Customer and us (each, an “Order Form”). Each Authorized User must agree to this Contract and the Terms of Service to activate their subscription. Subscriptions commence when we make them available to Customer and continue for the term specified in the Services “check-out” interface or in the Order Form, as applicable. Each subscription is for a single Authorized User for a specified term and is personal to that Authorized User.

3. Customer Feedback

The more suggestions our customers make, the better the Services become. If Customer sends us any feedback or suggestions regarding the Services, there is a chance we will use it, so Customer grants us (for itself and all of its Authorized Users and other Customer personnel) an unlimited, irrevocable, perpetual, sublicensable, transferable, royalty-free license to use any such feedback or suggestions for any purpose without any obligation or compensation to Customer, any Authorized User or other Customer personnel.

4. Third Party Services

Our Services include a platform that third parties may use to develop applications and software that complement Customer’s use of the Services (each, a “Third Party Services”). THESE ARE NOT OUR SERVICES, SO WE DO NOT WARRANT OR SUPPORT THIRD PARTY SERVICES, AND, ULTIMATELY, CUSTOMER (AND NOT US) WILL DECIDE WHETHER OR NOT TO ENABLE THEM. ANY USE OF A THIRD PARTY SERVICES IS SOLELY BETWEEN CUSTOMER AND THE APPLICABLE THIRD PARTY PROVIDER.

If a Third Party Service is enabled for Customer’s Pivot Organization or any of its Spaces, please be mindful of any Customer Data that will be shared with the third party provider and the purposes for which the provider requires access. We will not be responsible for any use, disclosure, modification or deletion of Customer Data that is transmitted to, or accessed by, a Third Party Services.

5. Privacy Policy

Please review our Privacy Policy for more information on how we collect and use data relating to the use and performance of our websites and products.

6. Customer and Authorized Users

a. Use of the Services

Customer must use the Services only in accordance with the Contract and comply with the Terms of Service. Customer must also ensure that its Authorized Users (including users created during Pivot Organization setup) comply with the Contract and the Terms of Service. We may review conduct for compliance purposes, but we have no obligation to do so. We are not responsible for the content of any Customer Data or the way Customer or its Authorized Users choose to use the Services to store or process any Customer Data. The Services are not intended for and should not be used by anyone under the age of 16 (sixteen). Customer must ensure that all Authorized Users are over 16 (sixteen) years old. Customer is solely responsible for providing high speed internet service for itself and its Authorized Users to access and use the Services.

b. Our Removal Rights

If we believe that there is a violation of the Contract that can simply be remedied by Customer’s removal of certain Customer Data or Customer’s disabling of a Third Party Services, we will, in most cases, ask Customer to take direct action rather than intervene. However, we may directly step in and take what we determine to be appropriate action, if Customer does not take appropriate action, or if we believe there is a credible risk of harm to us, the Services, Authorized Users, or any third parties.

7. Payment Obligations

a. Payment Terms

For Customers that purchase our Services, fees are specified at the Services interface “check-out” and/or in the Order Form(s). Payment obligations are non-cancelable and, except as expressly stated in the Contract, fees paid are non-refundable. For clarity, in the event Customer downgrades any subscriptions from a paid plan to a free plan, Customer will remain responsible for any unpaid fees under the paid plan, and Services under the paid plan will be deemed fully performed and delivered upon expiration of the initial paid plan subscription term. If we agree to invoice Customer by email, full payment must be received within thirty (30) days from the invoice date. Fees are stated exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”). Customer will be responsible for paying all Taxes associated with its purchases, except for those taxes based on our net income. Should any payment for the Services be subject to withholding tax by any government, Customer will reimburse us for such withholding tax.

b. Downgrade for Non-Payment of Fees Owed in Accordance with an Order-Form

If any fees owed to us by Customer (excluding amounts disputed reasonably and in good faith) are thirty (30) days or more overdue, we may, without limiting our other rights and remedies, in our sole discretion, downgrade any fee-based Services to free plans until those amounts are paid in full, so long as we have given Customer ten (10) or more days’ prior written notice that its account is overdue. Notwithstanding the second paragraph of the “Providing the Services” section below, Customer acknowledges and agrees that a downgrade will result in a decrease in certain features and functionality and potential loss of access to Customer Data, as illustrated by comparing the plans on the Pricing page of Pivot’s website.

c. Downgrade for Non-Payment of Fees Owed Per the Self-Service Check-Out Interface

If any fees owed to us by Customer (excluding amounts disputed reasonably and in good faith) are seven (7) days or more overdue, we may, without limiting our other rights and remedies, in our sole discretion, downgrade any fee-based Services to free plans until those amounts are paid in full, so long as we have given Customer four (4) or more days’ prior written notice that its account is overdue. Notwithstanding the second paragraph of the “Providing the Services” section below, Customer acknowledges and agrees that a downgrade will result in a decrease in certain features and functionality and potential loss of access to Customer Data, as illustrated by comparing the plans on the Pricing page of Pivot’s website.

8. Our Responsibilities

a. Providing the Services

Pivot will (a) make the Services and Content available to Customer pursuant to this Agreement, and the applicable Order Forms and Documentation (inclusive but not limited to the documentation provided at https://pivot.app/docs), (b) provide applicable Standard Support for the Purchased Services to Customer at no additional charge, and/or upgraded support if purchased, (c) use commercially reasonable efforts to make the online Purchased Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which Pivot shall give advance electronic notice via the Services), and (ii) any unavailability caused by circumstances beyond Pivot’s reasonable control, including, for example, an act of God, act of government, pandemic, endemic, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem, Internet service provider failure or delay, Third Party Services, or denial of service or other cyber-attack, and (d) provide the Services in accordance with laws and government regulations applicable to Pivot’s provision of its Services to its customers generally (i.e., without regard for Customer’s particular use of the Services), and subject to Customer’s and Users’ use of the Services in accordance with this Agreement, the Terms of Use, and the applicable Order Form.

“Standard Support” means the level of technical support provided by Pivot. Standard Support includes responses to customer requests via the Pivot support email address and/or the support chat interface provided by Pivot. Standard Support response times are estimated at 48 to 72 hours, not including United States federal and state holidays, and no guaranteed response time is provided. Standard Support does not include in-person services or any access to Pivot employees via phone, video call, or any other communication method. Standard Support does not include training or software development services. Pivot may offer technical support outside of the Standard Support for an additional fee.

If Customer registers on Pivot’s website for a free trial, Pivot will make the applicable Service(s) available to Customer on a trial basis free of charge until the earlier of (a) the end of the free trial period for which Customer registered to use the applicable Service(s), or (b) the start date of any Purchased Service subscriptions ordered by Customer for such Service(s), or (c) termination by Pivot in its sole discretion. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. In particular, Pivot may track your use of the Services for purposes of conducting internal analyses.

Pivot’s representations and warranties apply to free trials the same as they apply to purchased Services.

We will (a) make the Services available to Customer and its Authorized Users as described in the Contract; and (b) not use or process Customer Data for any purpose except as consistent with our Privacy Policy.

b. Subject to the “Third Party Services” and “Downgrade for Non-Payment” sections (7(b) and 7(c) above), we will not materially decrease the functionality of a Service during a subscription term. For any breach of a warranty in this section, Customer’s exclusive remedies are those described in the sections titled “Termination for Cause” and “Effect of Termination.”

c. Protecting Customer Data

The protection of Customer Data is a top priority for us so we will maintain administrative, physical, and technical safeguards at a commercially reasonable level. Those safeguards will include measures for preventing unauthorized access, use, modification, deletion and disclosure of Customer Data by our personnel. Customer (not us) bears sole responsibility for adequate security, protection and backup of Customer Data when in Customer’s or its representatives’ or agents’ possession or control. We are not responsible for what Customer’s Authorized Users or Third Party Services do with Customer Data.

d. Software Updates. “Update” means any patch, bug fix or any other update of the Services delivered to you pursuant to this or other applicable Agreement. “Update” does not include software upgrades that are determined to be material by Company in its sole discretion. Customers will receive all Updates that Pivot makes generally commercially available during the term of this Agreement. Updates will automatically be installed, and Pivot may provide notice or not in its discretion. Updates do not include any product or service that is marketed and priced separately by Pivot.

9. Customer Responsibilities

a. Unless otherwise provided in the applicable Order Form or Documentation, (a) Purchased Services and access to Content are purchased as subscriptions for the term stated in the applicable Order Form or in the applicable online purchasing portal, (b) subscriptions for Purchased Services may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Pivot regarding future functionality or features.

b. Services and Content are subject to usage limits specified in Order Forms and Documentation. If Customer exceeds a contractual usage limit, Pivot may work with Customer to seek to reduce Customer’s usage so that it conforms to that limit. If, notwithstanding Pivot s efforts, Customer is unable or unwilling to abide by a contractual usage limit, Customer will execute an Order Form for additional quantities of the applicable Services or Content promptly upon Pivot’s request, and/or pay any invoice for excess usage in accordance with the “Invoicing and Payment” terms below.

c. Customer will (a) be responsible for Users’ compliance with this Agreement, Documentation and Order Forms, (b) be responsible for the accuracy, quality and legality of Customer Data, the means by which Customer acquired Customer Data, Customer’s use of Customer Data with the Services, and the interoperation of any Third Party Services or third party application with which Customer uses Services or Content, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify Pivot promptly of any such unauthorized access or use, (d) use Services and Content only in accordance with this Contract, the Terms of Use, the Privacy Policy, and any other Documentation, and applicable laws and government regulations, and (e) comply with terms of service of any Third Party Services or third party application with which Customer uses Services or Content. Any use of the Services in breach of the foregoing by Customer or Users that in Pivot’s judgment threatens the security, integrity or availability of Pivot’s services, may result in Pivot’s immediate suspension of the Services, however Pivot will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to any such suspension.

d. Customer will not (a) make any Service or Content available to anyone other than Customer or Users, or use any Service or Content for the benefit of anyone other than Customer or its Affiliates, unless expressly stated otherwise in an Order Form or the Documentation, (b) sell, resell, license, sublicense, distribute, rent or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering, (c) use a Service or Third Party Services or third party application to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a Service or Third Party Services or third party application to store or transmit malicious code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or Content or its related systems or networks, (g) permit direct or indirect access to or use of any Services or Content in a way that circumvents a contractual usage limit, or use any Services to access, copy or use any of Pivot intellectual property except as permitted under this Contract, the Terms of Use, an Order Form, or other Documentation, (h) modify, copy, or create derivative works of a Service or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein or in an Order Form or other Documentation, (j) frame or mirror any part of any Service or Content, other than framing on Customer's own intranets or otherwise for its own internal business purposes or as permitted in the Documentation, (k) except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile a Service or Content or access it to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Service, (3) copy any ideas, features, functions or graphics of the Service, or (4) determine whether the Services are within the scope of any patent.

e. If Customer receives notice, including from Pivot, that Content or a Third Party Services or third party application may no longer be used or must be removed, modified and/or disabled to avoid violating applicable law, third-party rights, or the Terms of Service, Customer will promptly do so. If Customer does not take required action, including deleting any Content Customer may have downloaded from the Services, in accordance with the above, or if in Pivot’s judgment continued violation is likely to reoccur, Pivot may disable the applicable Content, Service and/or Third Party Services or third party application. If requested by Pivot, Customer shall confirm deletion and discontinuance of use of such Content and/or Third Party Services or third party application in writing and Pivot shall be authorized to provide a copy of such confirmation to any such third-party claimant or governmental authority, as applicable. In addition, if Pivot is required by any third-party rights holder to remove Content, or receives information that Content provided to Customer may violate applicable law or third-party rights, Pivot may discontinue Customer’s access to Content through the Services.

10. Ownership and Proprietary Rights

a. Customer Data

As between us on the one hand, and Customer and any Authorized Users on the other, Customer will own all Customer Data. Subject to the terms and conditions of the Contract, Customer (for itself and all of its Authorized Users) grants us a worldwide, non-exclusive, limited term license to access, use, process, copy, distribute, perform, export and display Customer Data, and any Third Party Services created by or for Customer, only as reasonably necessary (a) to provide, maintain and update the Services; (b) to prevent or address service, security, support or technical issues; (c) as required by law or as permitted by the Privacy Policy; and (d) as expressly permitted in writing by Customer. Customer represents and warrants that it has secured all rights in and to Customer Data from its Authorized Users as may be necessary to grant this license.

b. Pivot Intellectual Property

We own and will continue to own our Services, including all related intellectual property rights. We may make software components available, via app stores or other channels, as part of the Services. We grant to Customer a non-sublicensable, non-transferable, non-exclusive, limited license for Customer and its Authorized Users to use the compiled version of these components, but solely as necessary to use the Services and as limited by this Contract and the Terms of Service. All of our rights not expressly granted by this license are hereby retained. All software source code is proprietary to Pivot unless specifically licensed otherwise in a public code repository owned by Pivot.

11. Term and Termination

a. Contract Term

As further described below, a free subscription continues until terminated, while a paid subscription has a term that may expire or be terminated. The Contract remains effective until all subscriptions ordered under the Contract have expired or been terminated or the Contract itself terminates. Termination of the Contract will terminate all subscriptions and all Order Forms.

b. Auto-Renewal

Unless an Order Form says something different, (a) all subscriptions automatically renew for additional periods equal to one (1) year or the preceding term, whichever is shorter; and (b) the per-unit pricing during any automatic renewal term will remain the same as it was during the immediately prior term. For subscriptions executed via Order Form, either party can give the other written notice of non-renewal at least thirty (30) days before the end of a subscription term to stop the subscriptions from automatically renewing. For subscriptions executed via self-service checkout, cancellation in the Service interface is necessary prior to the date of renewal.

c. Termination for Cause

We or Customer may terminate this Contract on written notice to the other party if the other party materially breaches the Contract and such breach is not cured within thirty (30) days after the non-breaching party provides written notice of the breach. Customer is responsible for its Authorized Users, including for any breaches of this Contract caused by its Authorized Users. We may terminate the Contract immediately on notice to Customer if we reasonably believe that the Services are being used by Customer or its Authorized Users in violation of applicable law.

d. Termination Without Cause

Customer may terminate its free subscriptions immediately without cause. We may also terminate Customer’s free subscriptions without cause at any time in our sole discretion.

e. Effect of Termination

Upon any termination for cause by Customer, we will refund Customer any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by us, Customer will pay any unpaid fees covering the remainder of the term of those subscriptions after the effective date of termination. In no event will any termination relieve Customer of the obligation to pay any fees payable to us for the period prior to the effective date of termination.

12. Data Portability and Deletion

We are custodians of Customer Data. During the term of a Pivot Organization’s subscriptions, Customer will be permitted to export or share certain Customer Data from the Services; provided, however, that because we have different products with varying features and Customer has different retention options, Customer acknowledges and agrees that the ability to export or share Customer Data may be limited or unavailable depending on the type of Services plan in effect and the data retention, sharing or invite settings enabled. Following termination or expiration of a Pivot Organization’s subscriptions, we will have no obligation to maintain or provide any Customer Data and may thereafter, unless legally prohibited, delete all Customer Data in our systems or otherwise in our possession or under our control.

13. Representations Disclaimer of Warranties

Customer represents and warrants that it has validly entered into the Contract and has the legal power to do so. Customer further represents and warrants that it is responsible for the conduct of its Authorized Users and their compliance with the terms of this Contract and the Terms of Service.

EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, THE SERVICES AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE.

14. Limitation of Liability

a. OTHER THAN IN CONNECTION WITH A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT WILL EITHER CUSTOMER’S OR PIVOT’S OR PIVOT’S AFFILIATES’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE CONTRACT OR THE TERMS OF SERVICE (WHETHER IN CONTRACT OR 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 WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER THE “PAYMENT TERMS” SECTION ABOVE.

b. IN NO EVENT WILL EITHER CUSTOMER OR PIVOT OR ITS AFFILIATES HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER 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. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

c. The Services support login using two-factor authentication (“2FA”), which is known to reduce the risk of unauthorized use of or access to the Services. We therefore will not be responsible for any damages, losses or liability to Customer, Authorized Users, or anyone else if any event leading to such damages, losses or liability would have been prevented by the use of 2FA. Additionally, Customer is responsible for all login credentials, including usernames and passwords, for administrator accounts as well the accounts of your Authorized Users. We will not be responsible for any damages, losses or liability to Customer, Authorized Users, or anyone else, if such information is not kept confidential by Customer or its Authorized Users, or if such information is correctly provided by an unauthorized third party logging into and accessing the Services.

d. The limitations under this “Limitation of Liability” section apply with respect to all legal theories, whether in contract, tort or otherwise, and to the extent permitted by law. The provisions of this “Limitation of Liability” section allocate the risks under this Contract between the parties, and the parties have relied on these limitations in determining whether to enter into this Contract and the pricing for the Services.

15. Our Indemnification of Customer

We will defend Customer from and against any and all third party claims, actions, suits, proceedings, and demands alleging that the use of the Services as permitted under the Contract infringes or misappropriates a third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer for all reasonable attorney’s fees incurred and damages and other costs finally awarded against Customer in connection with or as a result of, and for amounts paid by Customer under a settlement we approve of in connection with, a Claim Against Customer; provided, however, that we will have no liability if a Claim Against Customer arises from (a) Customer Data or Third Party Services; and (b) any modification, combination or development of the Services that is not performed by us, including in the use of any application programming interface (API). Customer must provide us with prompt written notice of any Claim Against Customer and allow us the right to assume the exclusive defense and control, and cooperate with any reasonable requests assisting our defense and settlement of such matter. This section states our sole liability with respect to, and Customer’s exclusive remedy against Pivot and its affiliates for any Claim Against Customer.

16. Customer's Indemnification of Us

Customer will defend Pivot and its affiliates (collectively, the “Pivot Indemnified Parties”) from and against any and all third party claims, actions, suits, proceedings, and demands arising from or related to Customer’s or any of its Authorized Users’ violation of the Contract or the Terms of Service (a “Claim Against Us”), and will indemnify the Pivot Indemnified Parties for all reasonable attorney’s fees incurred and damages and other costs finally awarded against a Pivot Indemnified Party in connection with or as a result of, and for amounts paid by a Pivot Indemnified Party under a settlement Customer approves of in connection with, a Claim Against Us. We must provide Customer with prompt written notice of any Claim Against Us and allow Customer the right to assume the exclusive defense and control, and cooperate with any reasonable requests assisting Customer’s defense and settlement of such matter. This section states your sole liability with respect to, and Pivot Indemnified Parties’ exclusive remedy against Customer, for any Claim Against Us.

17. Limitations on Indemnifications

Notwithstanding anything contained in the two preceding sections, (a) an indemnified party will always be free to choose its own counsel if it pays for the cost of such counsel; and (b) no settlement may be entered into by an indemnifying party, without the express written consent of the indemnified parties (such consent not to be unreasonably withheld), if (i) the third party asserting the claim is a government agency, (ii) the settlement arguably involves the making of admissions by the indemnified parties, (iii) the settlement does not include a full release of liability for the indemnified parties, or (iv) the settlement includes terms other than a full release of liability for the indemnified parties and the payment of money.

18. Confidentiality

a. Confidential Information

Each party (“Disclosing Party”) may disclose “Confidential Information” to the other party (“Receiving Party”) in connection with the Contract, which is anything that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure including all Order Forms, as well as non-public business, product, technology and marketing information. Confidential Information of Customer includes Customer Data. If something is labeled “Confidential,” that’s a clear indicator to the Receiving Party that the material is confidential. Notwithstanding the above, Confidential Information does not include information that (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party.

b. Protection and Use of Confidential Information

The Receiving Party will (a) take reasonable measures to prevent the unauthorized disclosure or use of Confidential Information, and limit access to those employees, affiliates and contractors who need to know such information in connection with the Contract; and (b) not use or disclose any Confidential Information of the Disclosing Party for any purpose outside the scope of this Contract. Nothing above will prevent either party from sharing Confidential Information with financial and legal advisors; provided, however, that the advisors are bound to confidentiality obligations at least as restrictive as those in the Contract.

c. Compelled Access or Disclosure

The Receiving Party may access or disclose Confidential Information of the Disclosing Party if it is required by law; provided, however, that the Receiving Party gives the Disclosing Party prior notice of the compelled access or disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the access or disclosure. Without limiting the foregoing, please review the Data Request Policy for details on how requests may be made for the disclosure of Customer Data and how we will handle those requests. If the Receiving Party is compelled by law to access or disclose the Disclosing Party’s Confidential Information, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing access to such Confidential Information as well as the reasonable cost for any support provided in connection with the Disclosing Party seeking a protective order or confidential treatment for the Confidential Information to be produced.

19. Survival

The sections that by their nature are intended to survive termination or expiration of this Agreement and the Terms of Use, including but not limited to Payment Terms, Client Data, Pivot’s Intellectual Property, the General Provisions below, indemnification sections, and confidentiality sections, will survive any termination or expiration of the Contract.

20. General Provisions

a. Publicity

Customer grants us the right to use Customer’s company name and logo as a reference for marketing or promotional purposes on our website and in other public or private communications with our existing or potential customers and affiliates, subject to Customer’s standard trademark usage guidelines as provided to us from time-to-time. Customer may send us an email to [email protected] stating that it does not wish to be used as a reference.

b. Force Majeure

Neither us nor Customer will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party, which may include denial-of-service attacks, supply chain issues, pandemic and endemic, a failure by a third party hosting provider or utility provider, strikes, shortages, riots, fires, acts of God, war, terrorism, and governmental action.

c. Relationship of the Parties; No Third Party Beneficiaries

The parties are independent contractors. The Contract does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third party beneficiaries to the Contract.

d. Email and Messages

Except as otherwise set forth herein, all notices under the Contract will be by email to the email address provided by Customer. Customer will keep its billing and contact information current at all times by notifying Pivot of any changes. Notices to Pivot will be sent to [email protected], except for legal notices, such as notices of termination or an indemnifiable claim, which must be sent to [email protected]. Notices will be deemed to have been duly given the day after they are sent.

e. Modifications

We may change these Customer Terms and the other components of the Contract (except any Order Forms). If we make a material change to the Contract, we will provide Customer with reasonable notice prior to the change taking effect via email. Customer can review the most current version of the Customer Terms at any time by visiting this page and by visiting the most current versions of the other pages that are referenced in the Contract. The materially revised Contract will become effective on the date set forth in our notice, and all other changes will become effective upon posting of the change. If Customer (or any Authorized User) accesses or uses the Services after the effective date, that use will constitute Customer’s acceptance of any revised terms and conditions.

f. Waiver

No failure or delay by either party in exercising any right under the Contract will constitute a waiver of that right. No waiver under the Contract will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.

g. Severability

The Contract will be enforced to the fullest extent permitted under applicable law. If any provision of the Contract is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of the Contract will remain in effect.

h. Assignment

Neither party may assign or delegate any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party. Notwithstanding the foregoing, Pivot may assign the Contract in its entirety (including all Order Forms), without consent of the other party, to a corporate affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any purported assignment in violation of this section is void. A party’s sole remedy for any purported assignment by the other party in breach of this section will be, at the non-assigning party’s election, termination of the Contract upon written notice to the assigning party. In the event of such a termination by Customer, we will refund Customer any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, the Contract will bind and inure to the benefit of the parties, their respective successors and permitted assigns.

i. Governing Law

This Agreement will be governed by and construed in accordance with the substantive laws of the State of Delaware without regard to conflict of laws and all disputes arising under or relating to this Agreement shall be brought and resolved solely and exclusively in the state or federal courts located in the County of San Francisco, state of California, and all parties agree to personal jurisdiction in such venues.

j. Attorney’s Fees

Should any legal action be commenced in connection with this Agreement, the prevailing party in such action shall be entitled to recover, in addition to court costs, such amount as the court may adjudge as reasonable attorneys’ fees.

k. Entire Agreement

The Contract, including these Customer Terms, Terms of Use, and all referenced pages and Order Forms, if applicable, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Without limiting the foregoing, the Contract supersedes the terms of any online agreement electronically accepted by Customer or any Authorized Users. However, to the extent of any conflict or inconsistency between the provisions in this Contract and any other agreements, the terms of this Contract will prevail, unless otherwise specifically set forth in the other agreement.