General Terms and Conditions for Subscription Services (“Terms of Use”)
Last Updated: September 27, 2021
General Terms and Conditions for Subscription Services
IMPORTANT NOTICE: PLEASE READ THROUGH THESE TERMS CAREFULLY. This document (these “Terms of Use” or “Terms” or “Agreement”) describes the terms under which Pivvot, LLC. (“Pivvot”) offers each individual or entity identified in an Order (” Customer”) access to various Software-as-a-Service solutions through the Pivvot Delivery Systems or by which Pivvot provides Professional Services. By accessing the Pivvot Delivery Systems or any Pivvot Data, you agree to comply with and to be bound by the Terms set out below. These Terms are incorporated by reference into each Order executed by an authorized representative(s) of both Customer and Pivvot.
If Customer is engaging Pivvot for Professional Services then those Professional Services are also subject to the supplemental provisions contained in Exhibit A to these Terms, which is attached and made a part hereof.
DEFINITIONS
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with a party.
“Authorized User” means an employee of Customer that has (i) been assigned a unique username-password combination to access and use the Subscription, and (ii) registered online to access and use the Subscription.
“Customer Applications” means any device, hardware, software, or technology in control by or in custody of Customer.
“Customer Data” means all data, records, files, images, graphics, audio, video, photographs, reports, forms, and other content and material, in any format, that are submitted, stored, posted, displayed, transmitted, system generated or otherwise used with the Subscription Services.
“Documentation” means Pivvot product guides and other end user documentation for the platform available online and through the help feature of the module, as may be updated by Pivvot from time to time.
“Licensor” means any party with whom Pivvot has an agreement for use of data and or services which may be incorporated as part of the Subscription Services, or otherwise made available to Customer or any other Authorized User.
“Order” or “Order Form” means an ordering document or online order specifying the products to be provided hereunder that is entered into between Pivvot and Customer from time to time, including any amendment, addenda and supplements thereto. Customer and its Affiliates may purchase products subject to these terms by executing an Order.
“Permitted Recipient” means if Client is an engineering firm or agency, its owner-operators client listed on the applicable Order.
“Pivvot Data” means all information made available, reported, downloaded or otherwise compiled using the Subscription Services, raw or compiled, regardless of form, including, but not limited to, reports, algorithms, meta-data, data, images, and information available through Pivvot’s Delivery Services.
“Pivvot Delivery Systems” means any websites, platforms and portals and any associated Pivvot proprietary software therein, data feeds, APIs, user interfaces, and other online and offline means through which the Pivvot Data is provided.
“Subscription” means an order to use any and or all of the following: (i) the Pivvot cloud platform and/or any module made available by Pivvot to Customer, (ii) the software made available by Pivvot online via the applicable customer logins, (iii) associated Support Services (i) and (ii) at service levels described in an Order.
“Subscription Services” means (i) the Pivvot Delivery Systems and (ii) the Pivvot Data as licensed by Customer in an Order.
“Support Services” means the level of support time purchased by Customer pursuant to an Order subject to the Pivvot Rate Sheet attached to the Order.
“Subscription Term” means the term of Subscription licensed by Customer, commencing on the Effective Date specified in the applicable Order for the Subscription Term specified therein and in any renewals thereto.
“Subscription Users” Each Subscription User will have a unique user login. Customer will identify an administrative user name and password. Pivvot™ reserves the right to refuse registration of/or to cancel passwords as it deems appropriate.
“Trial Usage” means any Pivvot product, service or functionality that may be made available by Pivvot to Customer to try at Customer’s option, at no additional charge, and which is designed as “beta,” “trial”, “non-GA,” “pilot,” “developer preview,” “non-production,” “evaluation,” or by a similar designation.
SUBSCRIPTION SERVICES
License of Subscription Services. Pivvot hereby agrees to provide the Subscription Services to Customer as stipulated in the applicable Order. Pivvot hereby grants to Customer a revocable, non-exclusive, non-transferable, limited license to access and use, and to permit its Authorized Users to access and use the Subscription Services as follows: Customer may download and/or store Pivvot Data to a storage device under Customer’s exclusive control solely: (i) to analyze Pivvot Data for Customer’s internal use, (ii) to incorporate Pivvot Data into existing internal business intelligence systems; and (iii) to quote from Pivvot Data (including the use of images and screenshots) in work product created by Customer for internal business purposes or presentation to Permitted Recipient. Customer shall use the Subscription solely for Customer’s internal business purposes and not for the benefit of and/or use with any other business or purpose. Pivvot reserves the right to modify the systems and environment of its platform to incorporate changes in technology, industry practices, patterns of system use, and other factors, as described in the Documentation during the applicable Subscription Term. Pivvot may update the Documentation to reflect such changes accordingly. Subsequent updates, upgrades and enhancements made generally available to all subscribing customers at no additional charge will be made available to Customer. The Customer acknowledges that the license of a Subscription is not contingent on the delivery of any future functionality or features. New features, functionality or enhancements may be marketed separately by Pivvot and may require the payment of additional fees. Pivvot will determine, in its sole discretion, whether access to such new features, functionality or enhancements will require an additional fee.
Trial Services. If Customer registers or accepts an invitation for Trial Usage, Pivvot will grant to Customer a revocable, non-exclusive, non- transferable, limited license to access and use the Subscription Services on a trial basis, free of charge, until the earlier of (a) the end of the free trial period described at the time of registration, or (b) the end date specified. Trial Usage is provided for evaluation purposes and not intended for production use. Customer shall have sole responsibility for and Pivvot assumes no liability for any Customer Data that Customer may choose to upload to the platform during Trial Usage.
PIVVOT MAKES NO REPRESENTATION OR PROVIDES NO WARRANTY, EITHER EXPRESS OR IMPLIED, AS TO THE PERFORMANCE OF THE PLATFORM DURING TRIAL USAGE, WHICH MAY BE IN BETA FORM AND CONTAIN BUGS OR ERRORS, AND MAY BE SUBJECT TO ADDITIONAL TERMS. PIVVOT MAY, IN ITS SOLE DISCRETION, DISCONTINUE TRIAL USAGE AT ANY TIME.
CUSTOMER OBLIGATIONS
Responsibilities. Customer shall (i) access and use the platform in accordance with these terms, applicable laws and government regulations, (ii) use commercially reasonable efforts to prevent unauthorized access or use and notify Pivvot promptly of any such unauthorized access or use, (iii) take full responsibility for maintaining Customer’s internal and external user logins and accessibility through activation and deactivation; and (v) take commercially reasonable steps necessary to ensure the security and compliance of the Customer Applications. Designated Authorized and/or Subscription Users may not share their login or password credentials with others. In the event that login or password credentials have been shared with unauthorized parties for access to the Subscription Services, Pivvot reserves the right to immediately terminate the authorization of those Authorized and/or Subscription Users who have violated the terms of this Agreement or to terminate this Agreement in whole.
Customer Data. Customer warrants that it owns all Customer Data or will provide to and/or procure for Pivvot any third-party licensing or proprietary information relating to Customer data that Pivvot may need to provide the Subscription Services. Customer warrants that Customer Data will not infringe on any third-party rights.
Restrictions. Customer shall not (a) license, sublicense, sell, resell, rent, lease, transfer, distribute or otherwise similarly exploit the Subscription; (b) use or permit others to use any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security; (c) copy, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile any part thereof or otherwise attempt to discover any source code or modify the platform, provided that if Customer takes any of the foregoing actions, Pivvot shall have sole ownership rights of the products, software, or other items which result from such actions; (d) disclose any benchmark or performance tests; (e) send or store infringing, unlawful, defamatory or libelous material; (f) remove the copyright, trademark, or any other proprietary rights or notices included within the Subscription Services, or on and in the Documentation; (iv) copy, download, scrape, store, publish, transmit, transfer, distribute, broadcast, circulate, sub-license, bundle with other products, sell or otherwise use any portion of the Subscription, in any form or by any means, except as expressly permitted by an Order; or (v) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Pivvot Delivery System, or Pivvot’s provision of services to any third party, in whole or in part.
The foregoing obligations of Customer are equally applicable to Pivvot’s Licensor’s, who shall be a third party beneficiary of this Agreement with regarding to the terms of use of the Subscription Services as described herein.
INVOICING AND PAYMENT
Fees. Customer shall pay all fees and any applicable additional fees if Customer exceeds the allotted capacity or other applicable limits specified. Except as otherwise specified (i) fees are payable in United States dollars, (ii) fees are based on Subscription accessed, regardless of usage, (iii) upon cancellation not in conformity with the Order Acknowledgment all fees due pursuant through the existing Subscription term shall be due and owing immediately as payment obligations are non-cancelable and fees paid are non-refundable, (iv) the Subscription purchased cannot be decreased during the relevant Subscription Term. All amounts payable will be made without setoff or counterclaim, and without any deduction or withholding.
Invoicing and Payment. Fees for the Subscription will be invoiced annually in advance, fees for overages will be calculated and invoiced monthly. Customer agrees to pay all invoiced amounts within thirty (30) days of invoice date. If Customer fails to pay any amounts due by the due date, in addition to any other rights or remedies it may have under these terms or by matter of law (i) Pivvot reserves the right to suspend the Subscription upon thirty (30) days written notice, until such amounts are paid in full, and (ii) Pivvot will have the right to charge interest at a rate equal to the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law until Customer pays all amounts due.
Taxes. Subscription Fees exclude all sales, value added and other taxes and duties imposed with respect to the sale, delivery, or use of any product covered hereby. Unless Customer provides a valid, signed certificate or letter of exemption for each respective jurisdiction of its tax-exempt status, Customer is responsible for payment of all taxes, levies, duties, assessments, including but not limited to value-added, sales, use or withholding taxes, assessed or collected by any governmental body (collectively, “Taxes”) arising from Pivvot provision of the Services hereunder, except any taxes assessed on Pivvot net income. If Pivvot is required to directly pay or collect Taxes related to Customer’s use of the Subscription hereunder, Customer agrees to promptly reimburse Pivvot for any amounts paid by Pivvot.
Effect of Bankruptcy. In the event that Customer becomes the subject of any voluntary or involuntary bankruptcy proceeding, liquidation, dissolution, receivership or attachment or make a general assignment for the benefit of creditors, amounts that have been paid to Pivvot are hereby deemed earned upon receipt and are Pivvot’s sole property, irrespective of whether goods or services, have been delivered and may be applied, in whole or in part, in satisfaction of any obligations owed by Customer to Pivvot under this Agreement or any other agreement between Customer and Pivvot.
Term. This Agreement shall become effective as of the date noted above when the applicable Order is executed and shall remain in effect for so long as any Order is in effect (the “Term”).
Termination for Cause. Either party may terminate the Agreement immediately upon written notice at any time if: (i) the other party commits a non-remediable material breach of the Agreement, or if the other party fails to cure any remediable material breach or provide a written plan of cure acceptable to the non-breaching party within 30 days of being notified in writing of such breach, except for breach of Customer’s payment obligations which shall have a ten (10) day cure period; or (ii) the other party ceases business operations; or (iii) the other party becomes insolvent, generally stops paying its debts as they become due or seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against the other (and not dismissed within 90 days after commencement of one of the foregoing events). If Pivvot terminates this Agreement for Customer’s non-payment, Customer agrees to pay to Pivvot the remaining value of the then-current initial or renewal term (that Customer acknowledges as liquidated damages reflecting a reasonable measure of actual damages and not a penalty) equal to the aggregate annual recurring fees (as set forth in the Order) that will become due during the canceled portion of such initial or renewal term. Where a party has rights to terminate, the non- breaching party may at its discretion either terminate the entire Agreement or the applicable Order. An Order that is not terminated shall continue in full force and effect under the terms of this Agreement.
Suspension. Pivvot will be entitled to suspend any or all Subscription Services upon 10 days written notice to Customer in the event Customer is in breach of this Agreement or applicable Order and Customer has failed to cure or provide a written plan of cure acceptable to Pivvot within 10 days of being notified in writing of such breach. Further, Pivvot may suspend Customer’s access and use of the Subscription Services if, and so long as, in Pivvot’s sole judgment, there is a security risk created by Customer that may interfere with the proper continued provision of the Subscription Services or the operation of Pivvot’s network or systems. Pivvot may impose an additional charge to reinstate service following such suspension.
PROPRIETARY RIGHTS
Subscription. Pivvot and its Licensors retain all right, title and interest in the Subscription Services, Pivvot Delivery System, and Documentation, including all related intellectual property rights therein. Pivvot reserves all rights in and to the Subscription Services, Pivvot Delivery System, and Documentation not expressly granted to Customer under this Agreement.
Customer Data and Customer Applications. As between Customer and Pivvot, Customer is and will remain the sole and exclusive owner of all right, title and interest to all Customer Data and Customer Applications, including any intellectual property rights therein. Customer hereby grants Pivvot rights to use, host, process, store, display and transmit Customer Data and Customer Applications solely as necessary for Pivvot to provide the Subscription in accordance with these terms subject to the limited licenses granted herein, Pivvot acquires no right, title or interest from Customer or Customer Licensors hereunder in or to Customer Data and Customer Applications, including any intellectual property rights therein.
CONFIDENTIALITY
Definition of Confidential Information. All information and documents, including the specific terms contained herein, regardless of the means of transmission, shall be deemed confidential unless written notice is provided stating otherwise. Without limiting the coverage of these confidentiality obligations, the parties acknowledge and agree that Confidential Information of each party shall include the terms and conditions, related benchmark or similar test results, other technology and technical information, security information, security audit reports, and business and marketing plans, except that Pivvot may reference and use Customer’s name, logos, and the nature of the Services provided hereunder in Pivvot business development and marketing efforts.
Exceptions. Confidential Information shall not include information that (i) is or becomes publicly available without a breach of any obligation owed to the Disclosing Party, (ii) is already known to the Receiving Party at the time of its disclosure by the Disclosing Party, without a breach of any obligation owed to the Disclosing Party, (iii) following its disclosure to the Receiving Party, is received by the Receiving Party from a third party without breach of any obligation owed to Disclosing Party, or (iv) is independently developed by Receiving Party without reference to or use of the Disclosing Party’s Confidential Information.
Protection of Confidential Information. The Receiving Party shall use the same degree of care used to protect the confidentiality of its own Confidential Information of like kind (but in no event less than reasonable care), and, except with Disclosing Party’s written consent, shall (i) not use any Confidential Information of Disclosing Party for any purpose outside the scope of this Agreement and (ii) limit access to Confidential Information of Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with these terms and who have a duty or obligation of confidentiality no less stringent than that set forth herein.
Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent required by applicable law, regulation or legal process, provided that the Receiving Party (i) provides prompt written notice to the extent legally permitted, (ii) provides reasonable assistance, at Disclosing Party’s cost, in the event the Disclosing Party wishes to oppose the disclosure, and (iii) limits disclosure to that required by law, regulation or legal process.
REPRESENTATIONS, WARRANTIES AND DISCLAIMERS
Pivvot Representations & Warranties. Pivvot represents and warrants that (i) the Subscription will materially conform with the relevant Documentation, and (ii) the functionality and security of the Subscription will not be materially decreased during a Subscription Term.
Remedies. Pivvot liability and Customer’s sole and exclusive remedy shall be for Pivvot, in the case of a breach of the warranty set forth in Section 8.1, to use commercially reasonable efforts to correct such failure if Customer notifies Pivvot within thirty (30) days of knowledge of the error. If the foregoing remedies are not commercially practicable, Pivvot may, in its sole discretion, terminate the applicable Order upon providing Customer with written notice thereof, and, as Customer’s sole and exclusive remedy, refund to Customer any prepaid, unused fees paid by Customer prorated with respect to the remaining portion of the current subscription Term for the non-conforming Subscription.
Customer Representations & Warranties. Customer represents and warrants that (i) it has the legal authority to enter into this Agreement, and (ii) it will act in accordance with the terms and conditions set forth herein and in compliance with all applicable laws, rules and regulations.
Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, SERVICES ARE PROVIDED ‘AS-IS’ AND ‘AS-AVAILABLE’. PIVVOT MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, ORAL, OR WRITTEN, STATUTORY OR OTHERWISE. PIVVOT HEREBY DISCLAIMS ALL IMPLIED WARRANTIES AND CONDITIONS, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, INFRINGEMENT, OR ANY WARRANTY WITH RESPECT TO THE QUALITY, PERFORMANCE, ACCURACY OR FUNCTIONALITY OF THE SERVICES OR THAT THE SERVICES ARE OR WILL BE ERROR FREE OR WILL ACCOMPLISH ANY PARTICULAR RESULT.
INDEMNIFICATION
Indemnification by Customer. Customer shall indemnify, defend and hold Pivvot harmless from and against any judgments, settlements, court-awarded costs and fees reasonably incurred (including reasonable attorney’s fees) resulting from any claim or suit, made or brought against Pivvot by a third-party alleging a breach, infringement and/or misappropriation of intellectual property rights that arise by, from, or through any Customer Data.
Exclusive Remedy. This Section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section.
LIMITATION OF LIABILITY
Limitation of Liability. Pivvot shall not be liable under this Agreement for any claim to the extent such claim does not arise from or is not related to the Subscription Services.
Exclusion of Consequential and Related Damages. UNDER NO CIRCUMSTANCES SHALL PIVVOT BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES, SUCH AS DAMAGES FOR ANY LOST PROFITS OR REVENUES, BUSINESS FAILURE, BUSINESS INTERRUPTION OR LOSS, INACCURATE INFORMATION, OR LOSS OF INFORMATION OR COST OF COVER, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) 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 LAW. THE FOREGOING LIMITATIONS SHALL REMAIN EFFECTIVE EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. IF APPLICABLE LAW LIMITS THE APPLICATION OF THE FOREGOING LIMITATIONS, PIVVOT’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMISSIBLE.
NOTICES, GOVERNING LAW AND JURISDICTION
Manner of Giving Notice. All legal notices of default, breach or termination (“Legal Notices”) hereunder shall be in writing and shall be deemed to have been given upon (i) personal delivery, (ii) the fifth business day after being sent by certified mail return receipt requested, or (iii) the first business day after sending by a generally recognized international guaranteed overnight delivery service. Each party shall send all Legal Notices to the other party at the address set forth in the applicable Order, as such party may update such information from time to time, with, in the case of notices sent by Customer, a copy sent to the Pivvot Legal Department at the address first set forth in the applicable Order. Billing-related notices to Customer will be addressed to the relevant billing contact designated by Customer on the applicable Order.
Arbitration, Governing Law and Injunctive Relief. This Agreement shall be governed by the laws of the State of Kansas. Any controversy or claim, other than for injunctive relief, arising out of or relating to the parties’ agreements relating to Subscription Services, or the breach of any agreement between the parties, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, the parties acknowledge that any unauthorized disclosure of Confidential Information or any actual or alleged infringement of such party’s or third party’s intellectual property rights might cause the other party to suffer irreparable harm for which damages would be an inadequate remedy and that, in such event, the aggrieved party may seek, in addition to any other available remedies, injunctive and other equitable relief in the state or federal courts located in Johnson County, Kansas. Each party consents to the jurisdiction of such court in any such civil action or legal proceeding and waives any objection to the laying of venue of any such civil action or legal proceeding in such court.
Waiver of Trial Jury. Each party hereby waives any right to jury trial in connection with any action or litigation.
GENERAL PROVISIONS
Export Compliance. Customer may not remove or export from the United States or allow the export or re-export of the Subscription Services or anything related thereto, or any derivative thereof in violation of any laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.
Anti-Corruption and OFAC. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift or thing of value from any of the other party’s employees or agents in connection with this Agreement. If a party learns of any violation of the above restriction, such party will use reasonable efforts to promptly notify the other party. Customer represents and warrants that it is not and will not share the benefit of the Subscription Services to any entity incorporated in or resident in a country subject to economic or trade sanctions by the U.S. State Department and/or OFAC or are listed as a “Specially Designated National,” a “Specially Designated Global Terrorist,” a “Blocked Person,” or similar designation under the OFAC sanctions regime. Any breach of this Section shall be deemed a material breach of this Agreement and Pivvot may immediately terminate this Agreement
Subscription Service Analysis. Pivvot may (i) complete statistical and other information related to the performance, operation and use of the Subscription Services, and (ii) use, and share data within its organization from the Subscription Services environment in aggregated form for security and operations management, to create statistical analyses, and for research and development purposes (clauses i and ii are collectively referred to as “Subscription Service Analyses”). Subscription Services Analyses will not incorporate any information, including Customer Data, in a form that could serve to identify Customer or an individual. Pivvot retains all intellectual property rights in Subscription Service Analyses.
No Third–Party Beneficiaries. The rights and obligations stated in this Agreement or any Order are applicable to Customer and Pivvot only with no third-party beneficiaries intended.
Waiver. No failure or delay by either party in exercising any right under these terms shall constitute a waiver of that right.
Force Majeure. Neither party shall be liable under these terms for delays or failures to perform the Services due to causes beyond its reasonable control. Such delays include, but are not limited to, fire, natural catastrophe, government legislation, acts, orders, or regulation, strikes or labor difficulties, to the extent not occasioned by the fault or negligence of the delayed party. Any such excuse for delay shall last only as long as the event remains beyond the reasonable control of the delayed party. If the force majeure event continues for more than thirty (30) calendar days, then either party may terminate the Subscription Service upon written notice to the other party.
Severability. If any provision of these terms is held by a court of competent jurisdiction to be contrary to law, the provision shall 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 this Agreement shall remain in effect.
Publicity. Customer agrees that Pivvot may identify Customer as a recipient of Subscription Services.
Assignability. Neither Party may assign all or any part of its rights or obligations hereunder or under any Order Form without the written consent of the other Party; provided, however, that either Party may assign this Agreement without obtaining the other Party’s consent to a purchaser of, or successor to, a majority of its assets or equity. Any purported assignment or transfer in violation of this Section and Agreement is void.
Relationship of the Parties. The parties hereto expressly understand and agree that each party is an independent contractor in the performance of each and every part of the Agreement, is solely responsible for all of its employees and agents and its labor costs and expenses arising in connection therewith.
Entire Agreement; Modifications; Waiver. This Agreement, together with any Order, sets forth the entire agreement of the parties with respect to the subject matter hereof and supersedes any previous written or oral understandings. No modifications may be made except in writing signed by both parties. In the event of a conflict between this Agreement and an Order, the Order shall control (provided, however, that the fact that a provision appears in an Order but not this Agreement but not the applicable Order, shall not be deemed to be a conflict for purposes of this sentence). The terms of this Agreement and any Order shall not be modified by any terms contained in (i) any purchase order issued by Customer, (ii) Customer’s electronic payment systems, (iii) Customer’s websites or (iv) other materials supplied by Customer. Pivvot’s reference of any such purchase order or use or receipt of any such payment systems, websites or materials shall not constitute an acceptance by Pivvot of any such terms. The failure of either Party to enforce any of the provisions of this Agreement or any Order in a particular instance shall not constitute a waiver of such provision, nor in any way affect the validity thereof, or the right of such Party to enforce it in future.
Binding Effect. The rights and obligations created by this Agreement shall be binding upon and inure to the benefit of the Parties, and their members, managers, shareholders, directors, officers, employees, successors and permitted assigns.
EXHIBIT A – PROFESSIONAL SERVICES
A.1 Pivvot will perform the mutually agreed upon Professional Services for Customer described in one or more Orders as the parties may agree to in writing from time to time. For purposes of these Terms, “Professional Services” shall mean data conversion, data mapping, implementation, site planning, configuration, integration and deployment of service, training, project management and other consulting services. Either party may propose a change order to add to, reduce or change the Professional Services ordered in the Order. Each change order shall specify the change(s) to the Professional Services or deliverables, and the effect on the time of performance and on the fees owed to Pivvot, due to the change. Once executed by both parties, a change order shall become a part of the Order.
A.2 Ownership and Limited Right. All intellectual property rights in the results of the Professional Services including (without limitation) all deliverables, contents, documentation, training materials, modifications and all intellectual property embodied herein (collectively, the “Deliverables”) shall vest solely and absolutely in Pivvot or its Licensors. Pivvot grants Customer, subject to timely payment of applicable fees and charges, and subject to the restrictions set forth in the Agreement, a personal, nonexclusive, non-transferable right to use the Deliverables for its internal business purposes.