Terms & Conditions

Last updated: September 17, 2024

Terms and Conditions

Please Read Carefully Before Using This Website and Any Affiliated Software or Services:

These Terms of Use govern the use of Pivott software (the “Software" or "services”) and all product, features, and content therein as provided by Pivott Software Inc. (“Pivott,” the “Company,” “we,” “us,” or “our”) strictly subject to these Terms of Use.

Terms and Conditions

  1. Pivott Software Inc. (“Pivott“), has developed software including modifications, enhancements, improvements, updates, additions, derivative works, documentation and related material (“Software”).
  2. Your company (Licensee) wishes to use Pivott's Software and Services;
  3. Pivott may, at any time, for any reason and without notice, (i) make changes to the Websites, Software or Services, including its look, feel, format, and content, as well as (ii) the products and/or services as described on the Websites. Any modifications will take effect when posted to the Websites, Software or Services. Therefore, each time you access or use the Websites, Software or Services, you need to review the Terms of Use upon which access and use of the Websites or Software is conditioned. By your continued use of the Websites after changes are posted, you will be deemed to have accepted such changes.

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NOW, THEREFORE, in consideration of the mutual covenants and premises herein contained, the parties hereto agree as follows:

  1. Subject to Your payment of the Fees, You are granted a non-exclusive, non-transferable license to permit Users and Affiliates to use the Services (including any associated IPR and Confidential Information of Pivott) from the Effective Date for the term of each Order Form for Your internal business operations. No additional implied rights are granted beyond those specifically mentioned.
    1. User Accounts. Customer is responsible for activity occurring under its User accounts and shall ensure that it and its Users abide by all laws, treaties, and regulations applicable to Customer’s use of the Hosted Applications. Customer shall: (i) notify Pivott promptly of any unauthorized use of any password or account or any other breach of security; (ii) notify Pivott promptly and use reasonable efforts to promptly stop any unauthorized use, copying, or distribution of the Hosted Applications that is known or suspected by its Users; (iii) not impersonate another Pivott user or provide false identity information to gain access to or use the Hosted Applications or Pivott Platform; and (iv) restrict each User account to only one authorized User at a time.
    2. Restrictions. Except as otherwise permitted under this Agreement, Customer shall not (i) license, sublicense, sell, resell, transfer, rent, lease, assign (except as provided in Section 11.4 (Assignment)), distribute, disclose, or otherwise commercially exploit the Hosted Applications; (ii) copy, modify or make derivative works based upon the Hosted Applications; (iii) “frame” or “mirror” the Hosted Applications on any other server or device; (iv) access the Hosted Applications for competitive purposes or use the Hosted Applications for application service provider, timesharing or service bureau purposes, or any purpose other than its own internal use, (v) decompile, disassemble, reverse engineer or attempt to discover any source code or underlying ideas or algorithms of the Hosted Applications, (vi) remove, obscure or modify a copyright or other proprietary rights notice in the Hosted Applications; (vii) use the Hosted Applications to send or store infringing, obscene, threatening, libelous, or otherwise unlawful material; (viii) use the Hosted Applications to create, use, send, store, or run material containing software viruses, worms, Trojan horses or otherwise engage in any malicious act or disrupt the security, integrity or operation of the Hosted Applications or the Pivott Platform; (ix) attempt to gain or permit unauthorized access to the Hosted Applications or its related systems or networks; or (x) permit or assist any other party (including any User) to do any of the foregoing. The Product Centers and Output must be used in accordance with the Governing Documents and solely for Site Owner’s internal business operations. Except as otherwise provided in the applicable Product Specifications, a Product Center may be used for only the management or operation of the Site(s) identified on the Order Form.
    3. Nothing in this Agreement shall be construed to mean, by inference or otherwise, that You have any right to obtain source code for the software comprised within the Services. Disassembly, decompilation or reverse engineering and other source code derivation of the software comprised within the Services is prohibited. To the extent that You are granted the right by law to decompile such software in order to obtain information necessary to render the Solution or Services interoperable with other software Pivott will provide access to any relevant source code or information provided that You make a written request identifying the relevant details of the Services with which operability is sought and the nature of the information needed. Pivott has the right to impose reasonable conditions including but not limited to the imposition of a reasonable fee for providing such access and information.
    4. Customer shall ensure that Customer’s Designated Support Contacts are trained on the use and administration of the Hosted Applications. Customer shall ensure that the name, contact and other information for these Designated Support Contacts are current in the Support Portal. Customer may replace Designated Support Contacts by updating the applicable information in the Support Portal, provided that at no time may Customer have more than the number of Designated Support Contacts permitted based on its Support Level.
    5. Pivott reserves the right to electronically monitor Your use of the Services to the extent required for the provision of the Services and to ensure adherence to the Services within the Order Form.
  2. Either party may terminate this agreement, for any reason, in writing by providing 10 days notice.
  3. In consideration for receiving the Software early for testing consideration, Licensee will notify Pivott of all problems and ideas for enhancements which come to Licensee’s attention during the period of this Agreement, and hereby assigns to Pivott all right, title and interest to such enhancements and all property rights therein including without limitation all patent, copyright, trade secret, mask work, trademark, moral right or other intellectual property rights.
  4. Licensee agrees that Software is the sole property of Pivott Software and includes valuable trade secrets of Pivott Software. Licensee agrees to treat Software as confidential and will not without the express written authorization of Pivott Software:
    1. Demonstrate, copy, sell or market Software to any third party; or
    2. Publish or otherwise disclose information relating to performance or quality of the Software to any third party; or
    3. Modify, reuse, disassemble, decompile, reverse engineer or otherwise translate Software or any portion thereof.
  5. Software is pre-release code and is not at the level of performance or compatibility of a final, generally available product offering. Software may not operate correctly and may be substantially modified prior to first commercial use or withdrawn. Software is provided “AS IS” without warranty of any kind. The entire risk arising out of the use or performance of Software remains with Licensee. In no event shall Pivott Software be liable for any damage whatsoever arising out of the use of or inability to use Software, even if Pivott Software has been advised of the possibility of such damages.
  6. Mutual Confidentiality. some text
    1. Each party agrees that at all times during the term of this Agreement, and thereafter, each party will hold in confidence, and will not, other than for purposes of this Agreement or an Order or Statement of Work (SOW), use or disclose to any third party any Confidential Information of the other party except as approved in writing by both parties. The term “Confidential Information” shall mean all non-public information that each party designates as being confidential, which under the circumstances of disclosure ought to be treated as confidential. “Confidential Information” includes, without limitation, the terms of this Agreement and any Order or SOW, intellectual property, marketing or promotion of any product or service of either party, business policies or practices of either party, customers or suppliers of either party or information received from others that either party is obligated to treat as confidential. “Confidential Information” does not include information that was (a) previously known without restriction, (b) received from a third party without restriction, (c) independently developed without use of the Confidential Information, or (d) information that becomes publicly available through no fault of the receiving party.
    2. Except with the disclosing party’s prior written permission, the receiving party shall not disclose or use any Confidential Information of the disclosing party for any purpose outside the scope of this Agreement to anyone other than to its Affiliates’ directors, officers, employees, representatives, and advisors (collectively "Representatives") who have a need-to-know such Confidential Information and are bound by obligations of confidentiality at least as stringent as those herein, and provided the receiving party shall remain liable to the disclosing party for any breach of the confidentiality and non-use obligations by any such Representatives. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care). If the receiving party is compelled by law to disclose Confidential Information of the disclosing party, it shall provide the disclosing party with prior written notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at disclosing party's cost, if the disclosing party wishes to contest the disclosure, and any information so disclosed shall continue to be treated as Confidential Information for all other purposes. 
    3. Remedies. Except as expressly provided in this Agreement, if the receiving party discloses or uses (or threatens to disclose or use) any Confidential Information of the disclosing party in breach of confidentiality protections hereunder, the disclosing party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.
  7. This Service is a release offering and is not at the level of performance of a commercially viable product offering. The Service may not operate correctly and may be substantially modified prior to its first commercial release, or at Company’s option may not be released commercially in the future.
  8. The Company and its Licensors shall not be liable for loss of use, lost profit, cost of cover, loss of data, business interruption, or any indirect, incidental, consequential, punitive, special, or exemplary damages arising out of or related to the Service or this Agreement, however caused and regardless of the form of action, whether in contract, tort (including negligence) strict liability, or otherwise, even if such parties have been advised of the possibility of such damages. In no event will Company’s aggregate cumulative liability for any claims arising out of or related to this Agreement exceed $50.00 or the amount the recipient actually paid under this agreement (if any).
  9. These Terms of Use shall be governed in all respects by the laws of the Province of British Columbia Canada, without reference to its choice of law rules. If an applicable law is in conflict with any part of the Terms of Use, the Terms of Use will be deemed modified to conform to the law. The other provisions will not be affected by any such modification.
  10. This Agreement constitutes the entire and only agreement between the parties for the Software described in the General Terms of this Agreement and all other prior negotiations, representations, agreements, and understandings are superseded hereby. No agreements altering or supplementing the terms hereof may be made except by means of a written document signed by the duly authorized representatives of the parties.
  11. Licensee shall comply with all applicable federal, state and local laws, regulations, and ordinances in connection with its activities pursuant to this Agreement.
  12. Failure of Pivott Software to enforce a right under this Agreement shall not act as a waiver of that right or the ability to later assert that right relative to the particular situation involved.
  13. If any provision of this Agreement shall be found by a court to be void, invalid or unenforceable, the same shall be reformed to comply with applicable law or stricken if not so conformable, so as not to affect the validity or enforceability of this Agreement.
  14. DISCLAIMERS AND LIMITATION OF LIABILITY
    1. LIMITATIONS OF LIABILITY. TO THE EXTENT PERMITTED BY LAW, NEITHER PARTY’S TOTAL AND AGGREGATED LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES PROVIDED HEREUNDER WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY UNDER THIS AGREEMENT. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS LIMIT. THE FOREGOING SHALL NOT LIMIT CUSTOMER’S OBLIGATION TO PAY FEES LEGALLY OWED UNDER THIS AGREEMENT. 
    2. Third Party Software and Content. From time to time, Pivott may utilize Third Party Software and Content in order to deliver the Software or Services to its Clients. Client’s use of the Third Party Software and Content is subject to and Client shall comply with the terms of any applicable Third Party EULAs. The licensors of such Third Party Software are intended third party beneficiaries with rights to enforce the Third Party EULAs. Pivott has no control over Third Party Software providers or the availability of the Third Party Software and Content. In its discretion, Pivott may add, remove, and/or substitute any Third Party Software. THE PROVISION OF CONTENT IS SUBJECT TO AVAILABILITY FROM THIRD PARTY CONTENT PROVIDERS AND Pivott SHALL HAVE NO LIABILITY SHOULD SUCH CONTENT BECOME UNAVAILABLE FOR ANY REASON OR IS NO LONGER AVAILABLE UNDER REASONABLE COMMERCIAL TERMS. PROVIDED THAT Pivott IS OTHERWISE IN COMPLIANCE WITH ITS WARRANTY PROVISIONS UNDER THE APPLICABLE SCHEDULES, Pivott MAKES NO WARRANTY WITH RESPECT TO ANY THIRD PARTY SOFTWARE OR ANY CONTENT; AND CLIENT’S SOLE REMEDY WITH RESPECT TO SUCH THIRD PARTY SOFTWARE SHALL BE PURSUANT TO THE ORIGINAL LICENSOR’S WARRANTY, IF ANY, TO Pivott, TO THE EXTENT PERMITTED BY THE ORIGINAL LICENSOR. CONTENT AND THIRD PARTY SOFTWARE ARE MADE AVAILABLE ON AN “AS IS, AS AVAILABLE” BASIS.
    3. EXCLUSION OF DAMAGES. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION, OR OTHER SIMILAR DAMAGES OF ANY TYPE OR KIND (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE, PROFITS, USE, GOODWILL OR OTHER ECONOMIC ADVANTAGE), REGARDLESS OF THE CAUSE, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR THE SERVICES PROVIDED HEREUNDER, EVEN IF THE PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR EVEN IF A PARTY’S REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE.
    4. LIMITATION OF LIABILITY EXCLUSIONS. NOTWITHSTANDING THE FOREGOING, NOTHING HEREIN SHALL LIMIT A PARTY’S LIABILITY FOR ITS (A) GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, (B) FRAUD OR FRAUDULENT MISREPRESENTATION, (C) DEATH OR BODILY INJURY CAUSED BY NEGLIGENCE, (D) OBLIGATIONS EXPRESSLY STATED UNDER SECTION 18 (INDEMNIFICATION), OR (E) INFRINGEMENT BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS.
    5. Time to Bring Claim. NO CLAIM ARISING OUT OF THE AGREEMENT, REGARDLESS OF FORM, MAY BE BROUGHT AGAINST Pivott MORE THAN THE SHORTER OF ONE YEAR OR THE MINIMUM PERIOD ALLOWED BY LAW AFTER THE CAUSE OF ACTION HAS OCCURRED.
    6. Survival. THIS SECTION SHALL SURVIVE FAILURE OF ANY EXCLUSIVE REMEDY.
  15. Currency shall be United States Dollars (USD) unless otherwise specified in writing.
  16. Customer obligations:
    1. The Customer shall maintain periodic backups of all data uploaded and/or created in Pivott. 
    2. The Customer is responsible for their own penetration testing, cyber fraud training, and enforcement of multi-factor authentication for single-sign-on (SSO) applications used to access Pivott.
    3. The Customer agrees that they shall not charge the Company any fees, costs, or expenses associated with the performance of this Agreement. Nor shall the Customer cause the Company any fees, costs, or expenses through any third party. In the event that the Customer breaches this provision, the Customer shall indemnify and hold harmless the Vendor from and against any and all liabilities, damages, losses, costs, and expenses (including reasonable attorneys' fees) incurred by the Vendor as a result of such breach.
    4. Client is responsible for notifying the Company of all billing information changes.
    5. Treatment in the Event of Insolvency of Client.
      The Parties acknowledge and agree that this Agreement is an executory contract as such term is defined in section 365 of the United States Bankruptcy Code (“USBC”). The Parties further acknowledge and agree that the Agreement does not provide a license of intellectual property as defined in section 101(35) of the USBC and that the provisions of Section 365(n) of the USBC are therefore not applicable. Client acknowledges that Pivott will be harmed if this Agreement was assigned to a competitor, direct or indirect, or any other party whose use of Pivott Software or Services pursuant to the Agreement would be detrimental to the business and rights of Pivott, and Client hereby grants Pivott the right to consent to any proposed assignment of this Agreement in a bankruptcy and that the rights of consent to the assignment provided in section 365(c)(1) of the USBC shall be applicable to any proposed assignment of this Agreement in any bankruptcy case filed by Client.
  17. Company obligations:
    1. Provision of the Hosted Applications. Pivott will make available to Customer, and Customer and its Affiliates are authorized to use the Hosted Applications during the Subscription Term as set forth in an applicable Order Form for their internal business purposes in accordance with the Documentation.
    2. Security. Pivott has implemented and shall maintain a written information security program of policies, procedures, and controls ("Security Program") governing the processing, storage, transmission, and security of Customer Data. The Security Program shall include industry standard practices designed to protect Customer Data from unauthorized access, acquisition, use, disclosure, or destruction. Pivott may periodically review and update the Security Program to address new and evolving security technologies, changes to industry standard practices, and changing security threats, provided that any such update does not materially reduce the overall level of security provided to Customer as described herein. 
    3. Breach Notification. Pivott shall report to Customer’s support contacts designated in Pivott’s customer support portal ("Support Portal") the accidental or unlawful alteration, unauthorized disclosure of, or access to Customer Data ("Breach") within 24 hours, after Pivott determines that a Breach has occurred, unless restricted by law. Accordingly, Pivott shall share information about the nature and consequences of the Breach that is reasonably requested by Customer to enable it to notify affected individuals, government agencies and/or credit bureaus. Customer has sole control over the content of Customer Data and is solely responsible for determining whether to notify impacted individuals and the applicable regulatory bodies or enforcement commissions and for providing such notice. Customer shall ensure that the support contacts designated in Pivott’s customer support portal are current and ready to receive any breach notification from Pivott.
    4. Insurance Program. Pivott has in place and shall maintain during the Agreement an industry standard insurance program to help manage risk that contains terms no less stringent than the following: (with an aggregate limit of CAD$2,000,000)some text
      1. Commercial General Liability Insurance CAD$2,000,000 in the aggregate; 
      2. Product Liability Insurance CAD$2,000,000 in the aggregate;
      3. Professional Liability Insurance CAD$2,000,000 in the aggregate;
      4. Network Security and Privacy Liability CAD$2,000,000 in the aggregate;
      5. Cyber Incident Response CAD$2,000,000 in the aggregate;
      6. Cyber Crime (e.g. social engineering)  CAD$2,000,000 in the aggregate;
      7. System Damage and Business Interruption  CAD$2,000,000 in the aggregate; and 
      8. Workers Compensation Insurance covering Pivott employees pursuant to applicable laws, and at the maximum limits statutorily required for each such jurisdiction.
    5. Return of Customer Data. Customer will only have until the effective date of termination of the Agreement ("Transition Period") to download any Customer Data. Upon such request, at no additional cost to Customer, Pivott will promptly make available for download transactional records from standard objects included in the outbound integrations in industry standard format (e.g., JSON, CSV) at time of decommissioning along with attachments in their native format (e.g., PDF, JPEG). For clarity, such data will not include system generated log files or Pivott specific configuration data. After the Transition Period, Pivott shall have no obligation to maintain or provide any Customer Data and may thereafter, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or under its control. For purposes of clarification, archival copies of Customer Data will be maintained subject to Pivott’s standard data backup and retention processes and subject to Pivott’s confidentiality obligations herein.
    6. Transition Services. Additionally, if Customer elects to purchase transition services upon termination of the Agreement, Pivott shall provide transition services to facilitate the orderly and complete transfer of the Customer Data to Customer or to any replacement provider designated by Customer (“Transition Services”), provided that the scope and fees of the Transition Services shall be mutually agreed in a statement of work prior to commencing Transition Services. Notwithstanding the provisions of this Section, in no event shall Pivott be required to disclose any of its Confidential Information or provide a license under any of its intellectual property to Customer or any third party as part of the Transition Services. For the avoidance of doubt, if Customer elects to receive Transition Services, Customer shall continue to pay pro-rated subscription fees for the use of the Hosted Applications during the transition period. 
  18. CHANGE OF OWNERSHIP OR MANAGEMENT
    1. In the event that a Property is sold or there is a change in management company, the Owner/Manager reserves the right to terminate this contract upon providing 30 days' written notice to Company. Upon such termination, all obligations and liabilities of both parties shall cease except for those obligations and liabilities that expressly survive termination under this Agreement. The terminating party shall not incur any penalty for such termination.
  19. Intellectual Property
    1. Pivott’s Intellectual Property Rights.  As between Pivott and Customer, all right, title, and interest in and to the Hosted Applications, Documentation, and Pivott Platform (including all rights therein, and all derivatives, translations, modifications, and enhancements thereof) are, and shall remain, owned exclusively by Pivott notwithstanding any other provision in this Agreement, Order Form, or statement of work hereunder. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Hosted Applications, Pivott Platform, or Documentation. The Pivott name, logo and product names are trademarks of Pivott, and no right or license is granted to use them. All rights not expressly granted to Customer are reserved by Pivott. Pivott alone shall own all rights, title, and interest in and to any suggestions, enhancement requests, feedback, or recommendations provided by Customer or any third party relating thereto.
    2. Customer Data. As between Customer and Pivott, Customer exclusively owns all rights, title, and interest in and to all Customer Data. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership of and right to use all Customer Data, and hereby warrants that it has and will continue to have all rights and consents necessary to allow Pivott to use all such data as contemplated by this Agreement. Customer hereby grants to Pivott a royalty-free, fully paid, non-exclusive, non-transferable (except as set forth in Assignment during change of ownership or change of management), sub-licensable, worldwide right and license to reproduce, use, process, transfer, and store Customer Data solely for the purposes of performing Pivott’s obligations under this Agreement and any other activities expressly agreed to by Customer.
    3. Use of Aggregate Data. Customer agrees that as part of providing the Hosted Applications, Pivott may collect, use, and disclose quantitative data derived from the use of the Hosted Applications for service improvements, industry analysis, benchmarking, analytics and supporting Customer’s usage of the Hosted Applications. All data disclosed will be in aggregate and anonymous form only and will not identify Customer or its specific Users or its relationship to their suppliers.
    4. Sister Companies, including Roofoveryourhead Marketing Ltd.  Company may share your information with members of the Company’s corporate family to provide joint content and services (like registration, transactions and customer support), to help detect and prevent potentially illegal acts and violations of our policies, and to guide decisions about their products, services and communications. Members of our corporate family will use this information to send you marketing communications only if you've requested their services.
  20. Taxes.
    1. Pivott’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, including for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, "Taxes") and Customer shall be responsible for payment of all Taxes associated with this Agreement and all Order Forms, except that Pivott is solely responsible for taxes assessable against Pivott based on Pivott’s net income, property, and employees. The Customer shall not withhold any Fees for taxation nor remit any amounts for taxations except amounts above and beyond that charged by Company.
  21. WARRANTIES
    1. Pivott’s Obligations. Pivott warrants, during the Subscription Term, that: (i) Customer’s production instances of the Hosted Applications shall materially conform to the Documentation; and (ii) the functionality of the Hosted Applications at the time of the Order Form shall not materially decrease during the Subscription Term.
    2. Procedure. To submit a warranty claim under this Section, Customer shall provide written notice of a warranty claim specifying the non-conformity. If the non-conformity persists without relief more than 30 days after written notice of a warranty claim provided to Pivott under this Section, then Customer may terminate the affected Hosted Applications and Pivott, as its sole liability in connection with a breach of this warranty, shall refund to Customer any prepaid subscription fees covering the remainder of the Subscription Term of the affected subscription after the effective date of termination. Notwithstanding the foregoing, this warranty shall not apply to any non-conformity due to any modification of or defect in the Hosted Applications that is made or caused by someone other than Pivott (or someone acting at Pivott’s direction).
    3. DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, PIVOTT DOES NOT MAKE ANY OTHER REPRESENTATION, WARRANTY, OR GUARANTY, AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE HOSTED APPLICATIONS, PIVOTT PLATFORM, UPDATES, DOCUMENTATION, SUPPORT AND/OR ANY OTHER PIVOTT SERVICES PROVIDED OR OFFERED HEREUNDER. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES PROVIDED HEREUNDER ARE PROVIDED STRICTLY ON AN “AS IS” BASIS AND ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR ANY WARRANTIES ARISING FROM USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
  22. Arbitration.
    1. Except as regarding any action seeking equitable relief, including without limitation for the purpose of protecting any Company confidential information and/or intellectual property rights, any controversy or claim arising out of or relating to these Terms of Use or the Websites, Software or Services  shall be settled by binding arbitration in accordance with the provisions, in effect at the time the proceedings begin, of the Commercial Arbitration Act. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration shall be held in the province of British Columbia. All information relating to or disclosed by any party in connection with the arbitration of any disputes hereunder shall be treated by the parties, their representatives, and the arbitrator as proprietary business information. Such information shall not be disclosed by any party or their respective representatives without the prior written authorization of the party furnishing such information. Such information shall not be disclosed by the arbitrator without the prior written authorization of all parties. Each party shall bear the burden of its own counsel fees incurred in connection with any arbitration proceedings. Judgment upon the award returned by the arbitrator may be entered in any court having jurisdiction over the parties or their assets or application of enforcement, as the case may be. Any award by the arbitrator shall be the sole and exclusive remedy of the parties. The parties hereby waive all rights to judicial review of the arbitrator's decision and any award contained therein.
  1. Indemnification
    1. Pivott shall: 
      1. defend Customer, its officers, directors, and employees against any third party suit, claim, or demand (each a "Claim") that alleges the Hosted Applications used in accordance with this Agreement and the applicable Order Form infringe any issued patent, copyright, trademark or misappropriate any trade secret of, such third party; and 
      2. pay any court-ordered award of damages or settlement amount which may include any expense, liability, loss, damage, costs or reasonable attorney’s' fees, each to the extent payable to a third party, to the extent arising from such Claims. Notwithstanding the foregoing, if Pivott reasonably believes that Customer’s use of any portion of the Hosted Applications is likely to be enjoined by reason of any Claims then Pivott may, at its expense and in its sole discretion: (i) procure for Customer the right to continue using the Hosted Applications; (ii) replace the same with other products having substantially equivalent functions that are not subject to any Claims of infringement; or (iii) modify the applicable Hosted Applications so that there is no longer any infringement, provided that such modification does not materially and adversely affect the functional capabilities of the Hosted Applications as set out herein or in the applicable Order Form. If (i), (ii), and (iii) above are not available on commercially reasonable terms in Pivott’s judgment, Pivott may terminate the affected Hosted Applications and refund to Customer the fees paid by Customer covering the remaining portion of the applicable Subscription Term for the affected Hosted Applications after the date of termination. The foregoing indemnification obligation of Pivott shall not apply: (1) if the Hosted Application is modified by any party other than Pivott (or someone acting at Pivott’s direction), but solely to the extent the alleged infringement is related to such modification; (2) if the Hosted Application is combined with other non-Pivott products, applications, or processes not authorized in writing by Pivott, but solely to the extent the alleged infringement is related to such combination; (3) to the extent the Claim arises in connection with any unauthorized use of the Hosted Application, or use that is not in compliance with any applicable laws, regulations, and/or Documentation; (4) to any third-party products, processes or materials (except for such third-party items provided by Pivott within the Hosted Applications); or (5) to any Claims arising as a result of the content of the Customer Data. THIS SECTION SETS FORTH PIVOTT’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
    2. Customer shall: 
      1. defend Pivott, its officers, directors, and employees against any Claim that arises from the Customer Data or that relates to a dispute between Customer and its supplier; and 
      2. pay any court-ordered award of damages or settlement amount which may include any expense, liability, loss, damage, costs, or reasonable attorney’s' fees, each to the extent payable to a third party, to the extent arising from such Claims. Customer’s indemnification obligation shall not apply: (1) if the Customer Data is modified by Pivott or by any party under Pivott’s control, without Customer’s authorization but solely to the extent the Claim is caused by such modification; or (2) to the extent the Claim arises as a result of any use or disclosure of the Customer Data by Pivott not contemplated by this Agreement.
    3. Each party’s indemnity obligations are subject to the following: some text
      1. the indemnified party shall promptly notify the indemnifier in writing of any Claims (provided, however, that the failure to give prompt written notice shall not limit the rights to indemnification except to the extent that the indemnifier is materially prejudiced by such failure); 
      2. the indemnifier shall have sole control of the defense and all related settlement negotiations with respect to any Claims (provided that the indemnifier may not settle any Claims that require the indemnified party to admit any civil or criminal liability or incur any financial obligation without the indemnified party’s consent, which consent shall not be unreasonably withheld); and 
      3.  the indemnified party shall cooperate fully to the extent necessary at the indemnifier’s cost in such defense and settlement.
  2. Client Reference.
    1. Unless otherwise instructed by you, you agree that the Company may identify you as a recipient of services and use your logo in sales presentations, marketing materials, and press releases.
  1. Cookies.
    1. a. General
    2. The Company or our service providers may use "cookies" (small files placed on your hard drive) on certain of our pages to help analyze our web page flow; customize our services, content and advertising; measure promotional effectiveness, and promote trust and safety. A few important things you should know about cookies are that: the Company offers certain features that are available only through the use of cookies. The Company uses cookies to help identify you and maintain your signed-in status. You are always free to decline cookies if your browser permits, although doing so may interfere with your use of some of our sites or services. For more information on your choices about accepting cookies, consult your browser help function. The Company sometimes works with service providers who may place cookies on your computer to serve and measure the effectiveness of ads on our or our advertising partners' behalf and collect anonymous information about how you use websites or Browser Extensions owned by the Company and its affiliates. This information allows them to help us customize our content and advertising. The Company does not allow these companies to collect any personal information about you using these cookies.

    3. b. Retention.com
      When you visit or log in to our website, cookies and similar technologies may be used by our online data partners or vendors to associate these activities with other personal information they or others have about you, including by association with your email or home address. We (or service providers on our behalf) may then send communications and marketing to these email or home addresses. You may opt out of receiving this advertising by visiting https://app.retention.com/optout
  1. Privacy & Personal Data.
    1. Please see pivott.io/privacy
  1. Invoicing & Payments
    1. Any invoice outstanding past 60 days will result in termination of all products and/or services.  Please note that check numbers and pictures of checks will not be accepted as proof of payment. To ensure products/services are restored as quickly as possible, we recommend mailing checks through an express courier service or submitting payment through our credit card system or through ACH/Direct Deposit.
    2. If over 50% of the portfolio is past 120 days overdue, please note that all products and/or services and further onboardings will be suspended until all outstanding payments for all outstanding communities have been received. 
    3. All overpayments will be added to the appropriate account as a credit. Credits may be applied to any open or upcoming invoices as needed at no charge. Refunds are only processed when requested by the client and are subject to an automatic $25 processing fee. No refunds will be issued for amounts below $35 unless the Company is solely at fault. For canceled properties, credits shall be applied in the following order:
      • Outstanding invoices for the same property;
      • Future invoices for the same property;
      • Outstanding invoices for other properties of the same owner;
      • Outstanding invoices for canceled subscriptions within the same management company.
      • Unclaimed credits shall expire after 12 months.
  2. Notices: Any notice required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given if delivered personally, sent by registered mail or courier, or transmitted by email to the respective addresses provided by the Parties. Any such notice shall be deemed to have been received: (i) if delivered personally, on the date of delivery; (ii) if sent by registered mail or courier, on the fifth (5th) business day after the date of posting or dispatch; or (iii) if transmitted by email, on the next business day following the date of transmission, provided that no notice of non-receipt is received by the sender. Either party may change its address for notice by giving notice to the other party in accordance with this clause.


To Company:
PO Box 8265 Victoria Main
Victoria BC V8W 3R9
Canada
info@pivott.io