Revista Customer Agreement
Terms and Conditions for Pivotal Reports
Available online at https://www.pivotal-analytics.com/digital-reports-subscription-agreement
The Customer named on the Pivotal Reports Order Form accepts the subscribes through Revista (“Revista” or “Distributor”) with Pivotal Analytics Inc. (“Pivotal”) for Pivotal™ healthcare market reports for markets in the US listed on the Order Form based on data aggregation, visualization, and analysis (the “Pivotal Reports”) that are subject to the Terms and Conditions herein. For the avoidance of doubt, Revista Customers subscribing to the Pivotal Reports product under the Terms and Conditions will not have access to any Pivotal SaaS platform.
General. These Subscription Pivotal Reports Terms and Conditions (the “Terms and Conditions”) govern the provision by Pivotal of the Pivotal Reports and the rights and obligations of Customer in regard to their use. “The Agreement”, “Distributor Customer Agreement”, or “this Agreement” shall mean collectively (i) these Terms and Conditions, and (ii) the Order Form adopted by Customer and Pivotal in connection with the Pivotal Reports.
Subscription Pivotal Reports.
Subject to these Terms and Conditions, during the Term (as defined in the Pivotal Reports Order Form ), Pivotal will provide the Customer with a non-exclusive, non-transferable, limited license (“License”) to access the Pivotal Reports via Distributor's web site located at a web address provided to the Customer by Distributor (“Distributor Site”), for Customer’s business purposes only. Only individuals employed by Customer or its Affiliates and given proper credentials by Pivotal shall have the License to access and use the Pivotal Reports and only when they have established user credentials, usernames, identifications and passwords (collectively, “Users”). Per the terms of Annex B and for the avoidance of doubt, Pivotal agrees that Customer may use, for both its internal and external business purposes, summaries, analyses, Pivotal proprietary compilations, reports, or other products or derivative works created from use of Pivotal Data and not actually containing Pivotal Data.
Users are limited to employees of Customer and its Affiliates (if any). Any change in Users or Affiliates will require written notice from Customer and a modification to the Order Form. “Affiliates” means the entities which directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with Customer (if listed on the Pivotal Reports Order Form) or Pivotal, by way of majority voting stock ownership or the ability to otherwise direct or cause the direction of the management and policies of such person.
Fees. In consideration for providing the Pivotal Reports and the License, the Customer shall pay to Pivotal
the fees stated on the Order Form (“Fees”), without any set-off or deductions. Pivotal shall have the right to increase the Fees at any time after the initial Term on at least thirty (30) days prior written notice. The increase shall be effective on the date stipulated in such notice, but Customer may, within thirty (30) days of receiving notice of an increase in fees, object to the increased fees by written notice, in which case this Agreement shall terminate as of the day before the increased Fees would go into effect.
The Customer will pay all Fees in advance before access is granted to the Customer. Fees for any renewals shall be paid in advance. Taxes, if any, will be paid by Customer and are not listed on the LOA.
Pivotal may use a third party payment service to bill Customer through an online account. By submitting payment account information, Customer grants Pivotal the right to store and process such information with the third party payment service and agrees that Pivotal will not be responsible for any failures of the third party, including any failures to adequately protect such information. The processing of payments will be subject to the terms, conditions and privacy policies of such third party payment service in addition to this Agreement. Pivotal may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Pivotal thirty (30) days after the mailing date of the invoice.
Term. The License granted herein shall expire on the date specified on the Order Form, unless sooner terminated pursuant to Section 21 or as otherwise set forth herein. In order to renew the License, Customer must make arrangements with Pivotal.
Access to Pivotal Reports.
The Customer shall access the Pivotal Reports by means of one of the current major web browsers
recommended by Pivotal, through a portal provided by Distributor.
In all cases, usernames or user IDs, passwords, and other access credentials (“Credentials”) must comply with Distributor’s specifications as in effect from time to time. Customer shall assign, record, and control the use of the Credentials. All Credentials shall be unique to each User. Users shall not permit anyone else to use their Credentials or disclose their Credentials to anyone other than an authorized administrator of Customer or Pivotal. User Licenses must be unique to an individual and may not be shared with others. Customer and not Pivotal will be solely responsible for any use or misuse of Credentials.
Restrictions. The Customer agrees that it will not, and will not allow Users, directors, officers, or employees or agents to:
reverse assemble, reverse engineer, decompile, translate, or otherwise attempt to derive the source
code or related tools or technology used by Pivotal or Distributor to provide the Pivotal Reports or any related services (the “System”) or any module or component thereof, nor copy any of the foregoing;
copy, reproduce, modify, sell, lease, create a derivative work of, sublicense, market or commercially exploit in any way the Pivotal Reports, the System or any module or component or download data from the Pivotal Reports, other than use of the System and data therein to creation of reports and studies in the manner contemplated by the System;
access or use the Pivotal Reports to circumvent or exceed account limitations and/or requirements of the Pivotal Reports;
create or attempt to create a product or service that is competitive with or substantially similar to the System and/or Pivotal Reports;
disclose or grant access to Credentials, the Pivotal Reports or any module or component thereof to any third party other than one to whom Pivotal has consented in writing and/or obtain unauthorized access to the Pivotal Reports (including, but not limited to, permitting access to or use of the Pivotal Reports via another system or tool, the primary effect of which is to enable input of requirements or transactions by those other than Users);
use, or permit the use of, the Pivotal Reports or any module or component thereof to perform any function for which it is not designed or intended by Pivotal or any other sort of information processing, data management or other function whatsoever for any other person, entity or business including, without limitation, any service bureau, time sharing, lease, distribution, resale, rental, application service provider agreement or any other arrangement, by networking (other than as expressly permitted in the System documentation provided by Pivotal;
use the Pivotal Reports in a manner that is contrary to applicable law or in violation of any third-party rights of privacy or intellectual property rights;
publish, post, upload or otherwise transmit data using the Pivotal Reports that contains any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to or could damage, interfere with, intercept, or expropriate any systems, data, personal information, or property of another;
use or permit the use of any tools in order to probe, scan or attempt to penetrate or benchmark the
Pivotal Reports; do any “mirroring” or “framing” of any part of the Pivotal Reports, or create Internet links to the Pivotal Reports that include log in information, usernames, passwords, and/or secure cookies;
or expressly or by implication state that any opinions contained in Customer’s electronic communications are endorsed by Pivotal share user credentials among Customer employees.
Support Pivotal Reports. Pivotal shall provide support services (“Support Pivotal Reports”) to Customer during Pivotal’s regular business hours, via the Pivotal Site, telephone, e-mail and any other means deemed appropriate by Pivotal. Access to such support will be limited to an administrator designated by Customer.
Security. The Pivotal Reports are not and will not be hosted on any server owned or operated by any of its data providers or Distributor. Customer information is not shared with any supplier of data to Pivotal or any other entity.
Pivotal shall maintain commercially reasonable administrative, physical and technical safeguards designed for the protection, confidentiality and integrity of Customer Data (as defined below).
Taxes. The Fees are exclusive of all taxes and the Customer shall pay (and Pivotal shall have no liability for), any taxes, tariffs, duties and other charges or assessments imposed or levied by any government or governmental agency in connection with, the System, the Pivotal Reports or their use, including, without limitation, any federal, provincial, state and local sales, use, goods and services, value-added and personal property taxes on any payments due Pivotal in connection with the foregoing, except for taxes based solely on the assets, properties, franchises or net income of Pivotal.
Intellectual Property Ownership.
Pivotal retains all right, title and interest and all intellectual property rights (including any reports, query
results or other output of the Pivotal Reports or System (“Work Product”), copyrights, designs, business methods, algorithms, search query routines, derivative works, modifications, extensions, customizations (including any processes, applications, code and other developments made in the course of serving Customer), scripts, Pivotal Technology, trade secrets, Pivotal Brands and other trademarks and patent rights) in and to the System and the Pivotal Reports, all related documentation and the Pivotal Site (collectively, the “Pivotal Materials”) and all copies thereof. Nothing herein gives to the Customer any ownership right, title or interest in or to Pivotal Materials or to any copy thereof or any license right with respect to the same that is not expressly granted herein. The Customer will not, either during or after the termination of the License, contest or challenge the ownership of the intellectual property rights in the Pivotal Materials by Pivotal nor remove any proprietary, copyright, patent, trademark, design right, trade secret, or any other proprietary rights legends from any Pivotal Materials. “Pivotal Brands” means any and all designs, colors, logos, copyrights, trademarks, and service marks, whether registered or unregistered, of Pivotal. “Pivotal Technology” means the network and content deployment technology of Pivotal, including all improvements, revisions and additions developed by or for Pivotal for use in the System, and all other technology owned or licensed by Pivotal. Customer, and to the extent necessary, Users, shall have a perpetual, irrevocable, paid-up, world-wide, non-transferrable license to use the Work Product in their respective business units, but shall not resell or otherwise distribute or share any part of the Work Product outside their respective business units, except Customer may share the Work Product with its Clients to the extent necessary for Customer to provide its own work product to the Clients, provided that Customer Clients shall not resell or further share or disclose the Work Product and Customer shall enter into a written agreement with such Client effectuating this requirement prior to sharing such Work Product. All Work Product that is used by the Customer, including query results or other output, will be attributed to Pivotal in any materials presented and or distributed to third parties.
The Customer's name, trademarks, logos, and similar property, and all the Customer's data, including
e-mails and other data transmitted by the Customer to Pivotal for processing using the Pivotal Reports (“Customer Data”) and the Customer systems used by the Customer to access the Pivotal Reports shall be and remain the property of the Customer. For avoidance of doubt, however, Customer Data shall not include data that is publicly available or that Pivotal obtains or could obtain from other sources. Pivotal shall have the right to use and reproduce the Customer Data solely to the extent necessary to provide the Pivotal Reports to Customer, fulfill its obligations to the Customer hereunder, and fulfill its obligations to Distributor. As a material inducement for Pivotal to provide the Pivotal Reports at the process provided in the Order Form, Pivotal may include Customer's name and logos, as applicable, on the Pivotal Site and other communications for purposes of identifying Customer as a client of Pivotal.
Any suggestions, enhancement requests, recommendations, proposals, corrections or other feedback
or information provided by Customer or any Users related to the operation or functionality of the Pivotal Reports collectively, (“Feedback”) are the sole property of Pivotal and may use such property in its sole discretion for any purpose without the consent of or providing notice or compensation to Customer. Should Customer want to limit Pivotal’s use of specific Feedback in any manner, Customer shall so inform Pivotal before providing that specific Feedback, and Pivotal may in its discretion decline to receive the feedback. Customer understands that such limitations on Pivotal’s use of Feedback may have the effect of impairing Pivotal’s ability to make enhancements beneficial to Customer.
Customer Responsibilities.
The Customer is responsible for obtaining all hardware, software, and services necessary to connect to the Pivotal Site and access the Pivotal Reports including without limitation, all computers, printers, servers, modems, routers, web browsers, local and wide area networks and network equipment and services provided by an Internet service provider. All such facilities and services shall comply with Pivotal's interface specifications for the Pivotal Reports as set forth by Pivotal from time to time, and Pivotal will use reasonable efforts to advise Customer in advance of any material change in such specifications.
Customer shall ensure that all access and use of the Pivotal Reports by Users is in accordance with these Terms and Conditions. Any action or breach by any of such User(s) shall be deemed an action or breach by Customer.
Customer shall provide accurate, current and complete information on Customer’s legal business name, address, email address and phone number, and maintain and promptly update this information if it should change.
Customer shall implement industry standard security systems, hardware, software, and procedures necessary to limit access to the Pivotal Reports to Users and otherwise maintain the security and integrity of Customer's information systems and data.
The Customer shall notify Pivotal immediately if there is a security breach or unauthorized use of the Pivotal Reports.
If Pivotal has reasonable grounds to believe that Customer is not abiding by Customer’s agreements in regard to use of the Pivotal Reports, Pivotal may require Customer to provide reasonable evidence of its compliance, including a certification of compliance signed by a senior executive officer of Customer. Pivotal shall have no responsibility for any security breach, hacking, intrusion, or other unauthorized access to or involving Customer's systems. Customer will be responsible for all backup equipment, software, systems and other disaster recovery and contingency planning procedures to protect against any loss or damage to its data. Customer will not use the System or Pivotal Reports in any way that may or will harm Pivotal, its System or others.
Customer represents and warrants that Customer has all applicable rights related to any and all data uploaded or otherwise provided by Customer in connection with the System and/or Pivotal Reports.
HIPAA, etc. Customer agrees that: (i) Pivotal is not acting on Customer’s behalf as a Business Associate or subcontractor; (ii) the Pivotal Reports may not be used to store, maintain, process or transmit protected health information (“PHI”) and (iii) the Pivotal Reports will not be used in any manner that would require Pivotal or the Pivotal Reports to be compliant with the Health Insurance Portability and Accountability Act of 1996, as amended and supplemented (“HIPAA”). In the preceding sentence, the terms “Business Associate,” “subcontractor,” “protected health information” or “PHI” shall have the meanings described in HIPAA. Customer shall not upload any PHI unless it has been de-identified in a manner that would make it impossible to identify the identity of any individual.
Export. The Customer shall not allow access to or export or re-export the System or Pivotal Reports either directly or indirectly, outside of the jurisdiction in which such materials are accessed by Users except in compliance with all applicable laws, ordinances and regulations.
Third Party Data; Right to Modify and Update the System.
Pivotal will have access to, use and include certain third-party data (“Third Party Data”) as part of the
Pivotal Reports. Pivotal has full discretion over which Third Party Data to include and not include in the Pivotal Reports.
If at any time during the term of this Agreement, Pivotal’s right to provide Customer Third Party Data
from any supplier as part of its Pivotal Reports is terminated, Pivotal may make arrangements for incorporation or use of new Third Party Data to be supplied from one or more alternate providers. Pivotal shall provide reasonable advance notice of such changes to Customer. The changes shall be effective on the date stipulated in such notice.
At its sole option, Pivotal shall be entitled to prepare new versions of the System (“Update Releases”)
and determine whether Update Releases shall be included in the System provided to the Customer.
Pivotal may from time to time, in its sole discretion, change some or all of the functionality or any
component of the Pivotal Reports or make any modification for the purpose of: (i) improving the performance, service quality, and error correction or to maintain the competitiveness of the Pivotal Reports; or (ii) complying with laws, regulations, or requirements of essential third-party partners.
Confidential Information.
Each party acknowledges that confidential information (including trade secrets and confidential technical, financial and business information, including the System, Customer's e-mails, and Credentials (collectively, “Confidential Information”) may be exchanged between the parties in connection with the Pivotal Reports. Each party shall use commercially reasonable efforts to prevent the disclosure and to protect the confidentiality of the Confidential Information of the other party. Each party agrees that it will not disclose or use the Confidential Information of the other party except to further the purposes of the Pivotal Reports and as authorized herein. For the avoidance of doubt, Pivotal will not disclose the Customer’s Confidential Information to any of its Third-Party Data suppliers except as permitted by Section 15(b).
The Customer will promptly report to Pivotal any unauthorized use or disclosure of Pivotal's Confidential Information that the Customer becomes aware of and provide reasonable assistance to Pivotal (or its licensors) in the investigation and prosecution of any such unauthorized use or disclosure. Customer shall not disclose any Confidential Information to Pivotal except as reasonably necessary for Pivotal to perform its obligations, and Pivotal shall have no obligation in connection with such unnecessary Confidential Information other than to use good faith efforts to treat it in accordance with this Section 15 and Pivotal may by notice to Customer delete or destroy such unnecessary Confidential Information in Pivotal’s discretion.
Notwithstanding Section 15(a) the recipient of Confidential Information may use or disclose the Confidential Information to the extent that such Confidential Information is: (i) already known by the recipient without an obligation of confidentiality, (ii) publicly known or becomes publicly known through no unauthorized act of the recipient, (iii) rightfully received from a third party without any obligation of confidentiality, (iv) independently developed by the recipient without use of the Confidential Information of the disclosing party, (v) approved by the disclosing party for disclosure, or (vi) required to be disclosed pursuant to a requirement of a governmental agency or law so long as the recipient provides the disclosing party with notice of such requirement prior to any such disclosure and takes all reasonable steps available to maintain the information in confidence. Information shall not be deemed to be available to the public or known to the recipient merely because it may be embraced by a more general disclosure or derived from combinations of disclosures generally available to the public or known to the recipient.
Right to Perform Pivotal Reports for Others. The Customer recognizes that Pivotal is in the business of providing computer and information technology services and may perform services for other persons similar to the Pivotal Reports, including others in the same industry as Customer. Subject to Section 10 and Section 15, nothing shall prevent Pivotal from using any ideas, concepts, methods, processes, know-how, organization, techniques or any software, including Pivotal Materials, in providing any services to any third person.
Warranty. Pivotal warrants that the System will not be materially altered to Customer’s detriment during the Term. For any breach of this warranty or the failure of Pivotal to provide the Pivotal Reports as required herein (a “Deficiency”), the Customer's sole and exclusive remedies and Pivotal's entire obligations hereunder shall be for Pivotal to provide a correction to the Pivotal Reports that are the subject of the Deficiency, or alternatively Customer may terminate the Agreement and obtain a refund of any prepaid fees applicable to periods following the effective date of termination. The remedies provided in this Section 17 are expressly in lieu of any or all other remedies which may be available to the Customer resulting from the furnishing, the failure to furnish or the quality of any Pivotal Reports.
Warranty Limitations.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, PIVOTAL DOES NOT REPRESENT OR WARRANT THE ACCURACY OF ANY DATA OR INFORMATION FURNISHED TO THE CUSTOMER THAT IS CREATED FROM THIRD PARTY DATA, THE CUSTOMER DATA, THE CUSTOMER SYSTEMS OR SOFTWARE USED BY THE CUSTOMER, OR REPRESENT THAT CUSTOMER’S USE OF THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR FREE OR THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT ALL ERRORS IN THE SERVICES AND/OR DOCUMENTATION WILL BE CORRECTED OR THAT THE OVERALL SYSTEM THAT MAKES THE SERVICES AVAILABLE (INCLUDING BUT NOT LIMITED TO THE INTERNET, OTHER TRANSMISSION NETWORKS, AND CUSTOMER’S LOCAL NETWORK AND EQUIPMENT) WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. PIVOTAL MAKES NO GUARANTEE OF RESULTS THAT MAY BE ACHIEVED BY CUSTOMER THROUGH USE OF THE SERVICES, INCLUDING, BUT NOT LIMITED TO, USE OF ANY OF PIVOTAL’S OBSERVATIONS AND/OR RECOMMENDATIONS PROVIDED AS PART OF THE WORK PRODUCT. ALL DECISIONS MADE BY CUSTOMER IN CONNECTION WITH THE SERVICES ARE CUSTOMER’S SOLE RESPONSIBILITY.
THE WARRANTIES STATED IN SECTION 17 ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY PIVOTAL.
THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF
MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. EXCEPT AS STATED IN THESE TERMS AND CONDITIONS, THE SERVICES ARE PROVIDED TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND IS FOR COMMERCIAL USE ONLY. PIVOTAL EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT CUSTOMER’S USE OF THE SERVICES WILL SATISFY ANY STATUTORY OR REGULATORY OBLIGATIONS, OR WILL ASSIST WITH, GUARANTEE OR OTHERWISE ENSURE COMPLIANCE WITH ANY APPLICABLE LAWS OR REGULATIONS. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICES OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR CUSTOMER’S PURPOSES.
Pivotal will not be responsible for service impairments caused by (i) acts within the control of the Customer or any User or outside the control of Pivotal; (ii) interoperability of specific Customer applications or equipment; (iii) inability of the Customer to access or interact with any other service provider through the Internet, other networks or users that comprise the Internet or the informational or computing resources available through the Internet; (iv) interaction with other service providers, networks, users or informational or computing resources through the Internet; (v) telecommunications or other services provided by others; (vi) performance impairments caused elsewhere on the Internet; or (vii) the performance, adequacy, accuracy, concurrency or other matters related to the Customer systems.
Pivotal will use commercially reasonable tools and practices consistent with industry standards to see
that the System does not include any “time bombs,” “worms,” “ransom-ware,” “Phishing” features, “viruses,” “Trojan horses,” “protect codes,” “data destruct keys,” or other programming devices that are intended to access, modify, delete, damage, deactivate or disable the System and/or Pivotal Reports (“Malicious Code”). As Customer’s sole remedy for breach of this representation, Pivotal shall take reasonable action to investigate, identify and remove such Malicious Code from the System.
Limitation of Liability.
For any breach or default by Pivotal of any of the provisions of the Agreement, or with respect to any claim arising from the Pivotal Reports or the Agreement, and subject to the other limitations of these Terms and Conditions, Pivotal's entire liability shall in no event exceed the Fees paid by Customer to Pivotal in the preceding twelve (12) months, less any amount previously refunded to the Customer.
IN NO EVENT WILL PIVOTAL BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL LOSS OR DAMAGE, LOSS OF BUSINESS REVENUE OR PROFITS, LOSS OF DATA, LOSS OF COVER, DAMAGES FOR DELAY, PUNITIVE OR EXEMPLARY DAMAGES, FAILURE TO REALIZE EXPECTED SAVINGS OR ANY CLAIM AGAINST THE CUSTOMER BY ANY USER OR OTHER PERSON, EVEN IF PIVOTAL HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSSES OR DAMAGES.
Pivotal shall not be liable for unauthorized access to or alteration, theft, loss or destruction of any data,
equipment, or the Pivotal Reports, including without limitation, through accident, fraudulent means or devices, or any other method.
Except as expressly set forth herein, Pivotal shall have no obligation, duty, or liability whatsoever in
contract, tort (including negligence) or otherwise to the Customer. The limitations, exclusions and disclaimers in these Terms and Conditions shall apply irrespective of the nature of the cause of action, demand, or action by the Customer and shall survive a fundamental breach or breaches or the failure of the essential purpose of the parties’ agreement or of any remedy contained herein.
Neither party shall be responsible or liable for any loss, damage or inconvenience suffered by the other
party or by any third person, to the extent that such loss, damage, or inconvenience is caused by the failure of the other party to comply with its obligations under these Terms and Conditions or the violation by such other party of the duties to any third person.
Neither party may bring an action, regardless of form, arising out of or related to these Terms and Conditions more than one (1) year after the cause of action has arisen or the date of such cause, could have reasonably been discovered, whichever is later.
The limitations on a party’s liability set forth in these Terms and Condition shall not apply to the extent
its gross negligence or willful misconduct has caused the other party to incur damages and the other party has complied with all of its obligations in these Terms and Conditions.
Indemnification.
The Customer shall defend, indemnify and hold Pivotal, its Affiliates, employees, officers, directors and
shareholders and their successors and assigns harmless from and against any claims, suits, actions or proceedings brought and damages, costs (including attorneys’ fees) or judgments awarded (collectively, “Losses”) against or incurred by Pivotal in claims or actions by third parties based upon or arising out of (i) the Customer's use of the Pivotal Reports or the Customer’s actions or omissions; (ii) breach by the Customer of this Agreement; or (iii) the Customer's failure to comply with any applicable law or regulation, provided that Customer shall have no obligation to provide defense or indemnity under this Section 20(a) to the extent the Losses arise from Pivotal’s breach of this Agreement, violation of laws or regulations or Pivotal’s negligence or willful misconduct. Pivotal shall give the Customer prompt written notice of such claims, permit the Customer to defend and/or settle such claims, and give the Customer all information and assistance reasonably requested by the Customer in connection with such claims. Customer agrees that it will not settle any such claim without Pivotal’s prior written consent, which shall not be unreasonably withheld.
Subject to the terms of Sections 18 and 19, Pivotal agrees to defend, indemnify and hold harmless Customer and its successors and assigns from and against any Losses based upon or arising out of any third party's claim (an “Infringement Claim”) that the Pivotal Reports infringe any United States copyright, patent or trademark of any third part, provided that Pivotal shall have no obligation to provide defense or indemnity under this Section 20(b) to the extent the Losses arise from Customer’s (i) provision of data to Pivotal in violation of a third party’s rights, (ii) use of the Pivotal Reports or Work Product in some manner that infringes a third party’s rights when some other manner of use would not infringe; or (iii) breach of this Agreement. The Customer shall give Pivotal prompt written notice of any Infringement Claim, permit Pivotal to defend and/or settle such Infringement Claims, and give Pivotal all information and assistance reasonably requested by Pivotal in connection with such Infringement Claims. Pivotal agrees that it will not settle any Infringement Claim without Customer’s prior written consent, which shall not be unreasonably withheld.
If any Infringement Claim is brought or threatened under paragraph 19(b) above, Pivotal shall, at its sole option and expense, (i) procure the right to continue to provide the Pivotal Reports or infringing part; or (ii) modify or amend the System or the Pivotal Reports or infringing part in such a way as to make the Pivotal Reports noninfringing, or replace the System or Pivotal Reports or infringing part with other items having substantially the same or better capabilities. If neither option (i) nor (ii) of the foregoing is commercially practicable in Pivotal's reasonable judgment, Pivotal may terminate the Pivotal Reports (or the infringing part thereof) and refund any prepaid subscription and/or maintenance and support Fees prorated over the period for which they were paid.
Pivotal shall have no liability to Customer or any third party for any alleged infringement claim, based
upon: (i) Customer's use of the System or Pivotal Reports in connection or in combination with any software, computer hardware or system or services not approved in writing by Pivotal (if such infringement claim could have been avoided by the use of other equipment, devices, System or Pivotal Reports); (ii) use of the System or Pivotal Reports contrary to the specifications and directions contained in the documentation or other reasonable instructions of Pivotal; (iii) the use of System or Pivotal Reports other than as contemplated under this Agreement or in a manner for which they were not intended or in violation of applicable law; or (iv) any data or information of Customer or its Affiliates. The remedies set forth in this Section 20 shall be Customer's sole and exclusive remedies in the event of an Infringement Claim relating to the System or the Pivotal Reports.
Subject to Section 19(f), the remedies set forth in Sections 20(b) (c) and (d) state the entire liability of Pivotal with respect to any alleged Infringement Claim, and Customer expressly waives any other remedy.
Termination. This Agreement may be terminated:
by Pivotal immediately, without any cure period, if: (i) Customer makes an unauthorized disclosure of any Confidential Information of Pivotal; (ii) Customer attempts to copy, distribute, modify or sell or copies, distributes, modifies or sells the System or violates any provision of Section 6; (iii) Customer attempts or makes an unauthorized transfer of this Agreement or otherwise violates Section 29 of these Terms and Conditions; or (iv) Customer uses the System and/or Pivotal Reports in any way that violates applicable laws or regulations.
by Pivotal if the Customer fails to make any payment when due or any interest thereon to Pivotal under
this Agreement and fails to cure such default within ten (10) days of receiving notice in writing from Pivotal to do so;
by Pivotal if Pivotal loses the rights to access any important Third-Party Data necessary to provide the Pivotal Reports to Customer within ten (10) days of providing notice in writing to Customer;
by either party in the event the other party materially breaches any of its duties, obligations, or responsibilities under this Agreement (other than those related to payment) and fails to cure such breach, if such breach is curable, or provide the other party with an acceptable plan for curing such breach within thirty (30) days after receipt by the breaching party of written notice specifying the breach; or
by either party in the event: (i) a receiver, trustee, administrator, or administrative receiver should be appointed for the party or its property; (ii) the party makes an assignment for the benefit of creditors; (iii) any proceedings should be commenced against the party under any bankruptcy, insolvency, or debtor's relief law, and such proceedings shall not be vacated or set aside within ninety (90) days from the date of commencement thereof; or (iv) the party should be liquidated or dissolved.
Effect of Termination. Except to the extent otherwise agreed to in writing by the parties, upon the termination of this Agreement: Pivotal shall be entitled to suspend or terminate the Customer's and all Users’ access to the Pivotal Reports;
the Customer will no longer have access to or be allowed use of the Pivotal Reports or any Work Product;
the Customer shall forthwith pay to Pivotal all amounts owing under this Agreement on the date of termination;
if the termination is based on anything other than a breach by Customer and where the Customer has paid Fees in advance, then Pivotal shall refund to the Customer a pro-rata part of the amount prepaid for services rendered as of the date of termination;
the Customer shall, and shall cause Users to, immediately and permanently cease to access and use, in any manner whatsoever, the Pivotal Reports, the Credentials, and any System documentation;
the License granted under Section 1 will automatically terminate; and all documents, information, data and/or software however recorded, which contain any of the other party’s Confidential Information shall be returned or destroyed, as the owner thereof shall direct.
Survival. Notwithstanding any other provision of this Agreement relating to expiration or termination (including any right of Customer to opt out within any trial period that may be provided) the provisions of Sections 10 through 13, 15 through 20, 22, 23, 25, 26, 28, 29 and 31 through 34 of these Terms and Conditions shall survive the expiration or termination of this Agreement.
Independent Contractor. Pivotal employees shall not be deemed at any time to be employees or servants of the Customer and Pivotal is and shall remain an independent contractor for all purposes. Unless otherwise agreed to in writing, Pivotal does not undertake to perform any obligation of the Customer, whether regulatory or contractual, or to assume any responsibility for the Customer's business or operations.
No Waiver; Cumulative Remedies. No failure or delay on the part of either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege hereunder or thereunder preclude or require any other or further exercise thereof or the exercise of any other right, power or privilege. Neither party shall be deemed, by any act of omission or commission, to have waived any of its rights or remedies hereunder unless such waiver is in writing. A waiver with respect to one event shall not be construed as continuing or as a bar to or a waiver of any right or remedy with respect to a subsequent event. The rights and remedies provided in this Agreement to each party are cumulative and not exclusive of any rights or remedies provided by law.
Notices. All notices and other communications shall have been duly given and shall be effective (a) when delivered by hand, (b) when transmitted via telecopy (or other facsimile device) or e-mail, (c) the business day after the day on which the same has been delivered prepaid to a reputable national overnight air courier service, or (d) the third (3rd) business day following the day on which the same is sent by certified or registered mail, postage prepaid, in each case to the respective parties at the address or telecopy number set forth on the Order Form, or at such other address or telecopy number as such party may hereafter specify by written notice to the other party:
Force Majeure. If performance of any obligation hereunder (except the making of payments) is prevented or interfered with by reason of fire, flood, earthquake, explosion or other casualty or accident or act of God; strikes or labor disputes; inability to procure or obtain delivery of parts, supplies, power, telecommunication services, equipment or software from suppliers, war, terrorism or other violence; any law, order proclamation, regulation, ordinance, demand or requirement of any governmental authority; or any other act or condition whatsoever beyond the reasonable control of the affected party, the party so affected shall be excused from such performance to the extent and for the duration of such prevention, restriction or interference; provided, however, that the party so affected shall take reasonable steps to avoid or remove such cause of non-performance and shall resume performance hereunder with dispatch whenever such causes are removed. Without limiting the generality of the foregoing, if a substantially complete interruption or outage of the Pivotal Reports continues for more than forty-five (45) days for the foregoing reasons, then either party may cancel this Agreement upon written notice to the other party, without further liability to each. Subject to the foregoing, the parties hereby agree that time is of the essence with respect to the performance of each of the parties’ obligations under the Agreement.
Severability. To the extent that any provision, portion or extent of this Agreement is deemed to be invalid, illegal or unenforceable, such provision, portion or extent shall be severed and deleted or limited so as to give effect to the intent of the parties insofar as possible and the remainder of this Agreement, as the case may be, shall remain binding upon the parties.
Assignment; Delegation. The Customer may not, without Pivotal's prior written consent, assign or transfer this Agreement or any of its rights or obligations under this Agreement to any third person, nor sublicense, lease or encumber the System or any part thereof without Pivotal's prior written consent, which shall not be unreasonably withheld. Pivotal may assign this Agreement to any third person without the consent of the Customer provided that Pivotal shall notify the Customer in writing of any such assignment. Pivotal may delegate to Pivotal’s Affiliates, agents, suppliers, and contractors any of the obligations herein imposed upon Pivotal and Pivotal may disclose to any such persons any information required by them to perform the duties so delegated to them so long as such persons agree to keep such information confidential, and such delegation or subcontracting shall not relieve Pivotal of its performance obligations hereunder.
Electronic Signatures; Counterparts. These Terms and Conditions may be executed via an electronic signature program, which shall have the same legal force and effect as if executed in-person. A paper copy of the Agreement may also be executed via paper copies in any number of counterparts with the same effect as if the signatures thereto and hereto were upon the same instrument, but all of such counterparts taken together shall be deemed to constitute one and the same instrument.
Entire Agreement. These Terms and Conditions, the Order Form and the documentation referred to therein represent the entire agreement between the Customer and Pivotal with respect to the Pivotal Reports and cannot be changed or waived except by an agreement in writing signed by the party against whom enforcement of the change or waiver is sought. If there is any conflict between the Order Form and these Terms and Conditions, the Order Form shall govern.
Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania without reference to its conflict or choice of law rules or principles.
Dispute Resolution. Each party agrees that before it seeks any form of legal relief it shall provide written notice to the other of the specific issues in dispute (and referencing the specific portions of any contract between the parties and which are allegedly being breached). Within thirty (30) days after such notice, knowledgeable executives of the parties shall hold at least one meeting (in person or by video or tele conference) for the purpose of attempting in good faith to resolve the dispute. The parties agree to maintain the confidential nature of all disputes and disagreements between them, including, but not limited to, informal negotiations, mediation or arbitration, except as may be necessary to prepare for or conduct these dispute resolution procedures or unless otherwise required by law or judicial decision. The dispute resolution procedures in this Section shall not apply prior to a party seeking a provisional remedy related to claims of misappropriation or ownership of intellectual property, trade secrets or Confidential Information.
Venue. Each party irrevocably consents and submits to the exclusive jurisdiction of the state and federal courts situated in Cumberland County, Pennsylvania, in connection with any action to enforce the provisions of this Agreement, to recover damages or other relief for breach or default under the Agreement, or otherwise arising under or by reason of this Agreement.
Modifications. This Agreement may be supplemented, amended, or modified by Pivotal at any time.