PIVOTAL ENERGY SOLUTIONS, LLC
Subscription Use Agreement
IMPORTANT - READ CAREFULLY: THIS SUBSCRIPTION USE AGREEMENT ("AGREEMENT") IS A LEGAL AGREEMENT BETWEEN YOU ("YOU" AND "YOUR") AND PIVOTAL ENERGY SOLUTIONS, LLC ("PIVOTAL").
THIS AGREEMENT APPLIES TO (1) ALL SUBSCRIPTIONS FOR PIVOTAL HOSTED SOFTWARE AS A SERVICE ("SAAS") SOLUTIONS AND (2) ANY OTHER RELATED SERVICES THAT PIVOTAL MAY PROVIDE TO YOU IN CONNECTION WITH SUCH SAAS SOLUTIONS.
PLEASE READ THE AGREEMENT CAREFULLY BEFORE CONTINUING YOUR SUBSCRIPTION REGISTRATION. BY CLICKING THE "I ACCEPT" BUTTON OR OTHERWISE ACCEPTING THIS AGREEMENT AS SET FORTH IN ANY ONLINE OR PRINTED ORDER FORM REFERENCING THIS AGREEMENT, YOU REPRESENT AND AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST CHOOSE THE "CANCEL" BUTTON AND YOU WILL NOT BE PERMITTED TO USE THE PIVOTAL SERVICE.
Section 1. Definitions
This Agreement uses the following definitions:
"Force Majeure" means the occurrence of any event beyond Pivotal’s reasonable control, including without limitation, an act of God, a labor disturbance, an Internet outage, interruption of service, communication outage, failure by a service provider to Pivotal, fire, terrorism, natural disaster, or war.
"Personally Identifiable Information" means information which can be used to distinguish or trace an individual’s identity, such as their name, social security number, biometric records, etc. alone, or when combined with other personal or identifying information which is linked or linkable to a specific individual, such as date or birth, mother’s maiden name, etc.
"Pivotal Materials" means any documentation, user guides or other similar materials provided by Pivotal to You in connection with Your use of the Pivotal Service.
"Pivotal Service" means the AXIS Software solution and/or any of the Pivotal SaaS solutions that are developed, operated, and maintained by Pivotal (and its third party service providers) and to which You purchase or otherwise receive a subscription or use rights through Pivotal or a Sponsor.
"Sponsor" means an energy efficiency program sponsor or an entity providing access to the Pivotal Services for participation in energy efficiency programs, home energy ratings, or quality assurance activities.
"Sponsor Program" means an energy efficiency program, home energy rating system, quality assurance program, and/or any other program sponsored or administered by the Sponsor.
"Subscription Term" means the term that (a) begins on the date this Agreement is executed and (b) ends on the date upon which the termination of this Agreement becomes effective pursuant to Section 5 hereof.
"Third Party Content" means any third party content that Pivotal may make available for Your access, reference or use in connection with the Pivotal Service.
"Your Data" means registration information and home inspection and energy model data, inspection checklists, inspection reports, scheduled inspections, inspection results, incentive and/or fee payments, and energy savings, and any similar data that You upload to the Pivotal Service.
Section 2. Use Rights / Restrictions
2.1 Use Rights; Restrictions. Subject to the terms of this Agreement, Pivotal grants to You during the Subscription Term the non-transferable (except as permitted below), non-exclusive right to access and use the Pivotal Service (and any Pivotal Materials provided to You) that the Pivotal Service is designed to perform, subject to the following restrictions: (i) except as expressly permitted herein, You may not license, sell, rent, lease, transfer, assign, distribute, display, host, outsource otherwise commercially exploit or make the Pivotal Service or the Pivotal Materials available to any third party; (ii) You may not modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Pivotal Service or Pivotal Materials (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law), (iii) You may not access or use the Pivotal Service or Pivotal Materials in order to build a similar or competitive product or service; (iv) Your use of the Pivotal Service shall conform with level of subscription purchased by You; and (v) Your use of the Pivotal Service must not cause undue strain on the Pivotal network through any non-standard use. You acknowledge and agree that Your use of the Pivotal Service may be subject to regulation by a variety of different laws and regulations, including those of jurisdictions where Your clients may be located, and that it is Your sole responsibility to both research and confirm whether Your use of the Pivotal Service fully complies with such laws and regulations applicably to You. By accessing, using and continuing to use the Pivotal Service, You represent and warrant to Pivotal that You will continue to do so in compliance with any and all applicable laws.
2.2 Support. During the Subscription Term, You are entitled at no extra charge to access online user guides, knowledge bases and self-help tools, and any additional standard support resources (collectively, "Basic Support") made available by us from time to time for the Pivotal Service. We may include additional terms or conditions relating to Basic Support on the customer care sections of our website. Pivotal reserves the right to reasonably modify any such posted terms for Basic Support during Your Subscription Term.
2.3 Intellectual Property Rights. Pivotal and its licensors shall retain all right, title and interest (including all copyrights, patents, service marks, trademarks and other intellectual property rights) in and to the Pivotal Service and Pivotal Materials (including methodologies and business processes used by Pivotal to develop or provide the Pivotal Service or Pivotal Materials), and any and all updates, enhancements, modifications, customizations and future releases and any other changes relating to the foregoing. Except for the limited access and use rights granted pursuant to this Agreement, You do not acquire any interest in the Pivotal Service or Pivotal Materials. You agree that if You provide us with any suggestions, enhancement requests or other feedback relating to the Pivotal Service or the Pivotal Materials, we may use such suggestions and feedback without restriction or obligation to You.
2.4 Ownership of Your Data. As between You and Pivotal, Your Data and any similar data provided by You to Pivotal (either in hard copy or electronic format) is and shall remain Your property. You hereby grant to Pivotal and Sponsor, if applicable, a perpetual, non-exclusive, irrevocable, worldwide, royalty-free, and sublicensable right and license to retain, use and publish Your Data for any purpose whatsoever, provided that any publicly shared data is stripped of Personally Identifiable Information or information that could otherwise identify You. You further acknowledge that (i) Pivotal does not intend to track contributions of Your Data by subscriber and that some data elements within Your Data may be duplicates of elements contributed by multiple subscribers, and (ii) all Your Data will remain part of Pivotal’s aggregated data compilation after and beyond the expiration or termination of Your Subscription Term, and remain available for use, updating and reference by Pivotal. Should a sale of Pivotal’s business ever occur, collected customer information may be transferred along with the sale but the information will be treated in the same manner as set forth in this Agreement. You hereby grant to Pivotal permission to share Your Data with Sponsor, if applicable.
2.5 Data Backup. Pivotal Service is programmed to perform data backups of database records. In the event of any loss, destruction, damage or corruption of Your Data caused by the Pivotal Service, Pivotal, as its sole obligation and liability and as Your sole remedy, will use commercially reasonable efforts to restore Your Data from Pivotal's most current backup of Your Data.
Section 3. Fees
3.1 Fees. The fees for the Pivotal Service ("Fees") are irrevocable and non-refundable except as set forth in this Agreement. Where You provide Pivotal or its designated payment processing vendor with credit card information, You authorize Pivotal to bill such credit card (a) at the time that You order the Pivotal Service, (b) for any applicable billing frequency, and (c) at the time of any renewal, for the amount charged plus any applicable sales taxes for any renewed Subscription Term. If Pivotal, in its discretion, permits You to make payment using a method other than a credit card, Pivotal will invoice You at the time the Agreement is executed and thereafter on a recurring basis (for example, monthly or quarterly) in advance of the relevant billing period, and all such amounts invoiced will be due within ten (10) days of Your receipt of Pivotal's invoice. Late payments shall be subject to a service charge of one and one-half percent (1.5%) per month, or the maximum charge permitted by law, whichever is less. If Pivotal utilizes a third party payment processing vendor, then additional terms and conditions will apply to Your transactions with such vendor.
3.2 Taxes. You agree to pay all sales, use, value-added, withholding and similar taxes (other than taxes on Pivotal's net income) arising from the transactions described in this Agreement. To the extent You are exempt from sales or other taxes, You agree to provide Pivotal, upon request, with the appropriate exemption certificate.
3.3 Non-Payment; Other Suspension Rights. Pivotal reserves the right, in its reasonable discretion, to suspend Your access and/or use of the Pivotal Service (i) where any payment is due but unpaid and You have been requested but failed to promptly cure such payment failure, or (ii) in the event of a dispute within Your organization as to the proper ownership and right to manage Your account and Pivotal is not promptly provided with written instructions from the interested parties associated with Your account that fully resolves the dispute. You agree that Pivotal shall not be liable to You nor to any third party for any suspension of the Pivotal Service resulting from Your non-payment of Fees or from a dispute as to the management rights to Your account.
Section 4. Use Of Names
4.1 Use of Names in Marketing. You may use Pivotal's name and credentials in an appropriate and acceptable manner for Your standard publicity promotions, provided that You agree to alter such use at Pivotal's request where such use is contrary to Pivotal's then-current trademark policies or is otherwise objectionable to Pivotal. Similarly, Pivotal and Sponsor, if applicable, may use Your business name in an appropriate and acceptable manner in connection with representative customer lists, provided that Pivotal or Sponsor, if applicable, agrees to cease or alter such use at Your request where such use is contrary to Your branding policies or is otherwise objectionable to You.
Section 5. Term & Termination
5.1 Standard Subscription Term. Your initial Subscription Term to the Pivotal Service will begin upon execution of this Agreement and shall continue on a month to month basis until the Subscription Term is terminated as provided for in this Section 5. Either party may terminate the Subscription Term to the Pivotal Service without cause by providing thirty (30) days' prior written notice to the other party. The term of this Agreement will automatically terminate when the Subscription Term is terminated. Pivotal's termination rights are in addition to any other suspension rights it may have under this Agreement.
5.2 Effect of Termination. Upon termination of the Subscription Term, (a) You agree that any Fees then due and payable to Pivotal must be paid in full, and (b) You have the right to download data created by You on the Pivotal Service and Pivotal will continue to make Your Data available for downloading through the termination date. Following the termination date, Pivotal may, but is not required to, remove Your Data from the production environment for the Pivotal Service. The provisions of this Agreement which by their nature are intended to survive expiration or termination shall survive, including but not limited to obligations concerning confidentiality, protection of intellectual property, indemnification and payment of unpaid Fees and expenses.
Section 6: Warranties / Liability Limitations / Indemnity
6.1 Pivotal Service Warranties. Pivotal warrants that during the Subscription Term, the Pivotal Service, when properly used, will operate substantially in accordance with the Pivotal Materials. Pivotal does not warrant that Your use of the Pivotal Service will be uninterrupted or error free. If the Pivotal Service does not meet this limited warranty, You may contact Pivotal, and Your exclusive remedy shall be that Pivotal shall correct any deficiencies so that the Pivotal Service substantially performs in accordance with the Pivotal Materials. The limited warranties set forth in this Agreement do not apply to any deviation of the Pivotal Service that is caused by, or results from, (i) modification of the Pivotal Service by anyone other than Pivotal; (ii) use of the Pivotal Service for any purpose other than that authorized in this Agreement; (iii) use of the Pivotal Service in combination with other software, data, or products that are defective or incompatible with, or are not authorized by Pivotal for use with the Pivotal Service; (iv) any malfunction of Your software, hardware, computers or computer-related equipment; (v) Your failure to use any updates to the Pivotal Service made available to You by Pivotal; or (vi) an event of Force Majeure.
6.2 Your Warranties and Indemnity. You warrant that You, at all times, comply with, and shall remain solely responsible for compliance with, all applicable federal, state and local laws and regulations in connection with Your use of the Pivotal Service, and You agree to indemnify and hold Pivotal and Sponsor, if applicable, harmless from and against any third party or government claims, including all related damages, costs and expenses (including reasonable attorneys' fees), that is based upon (i) Your violation of law or breach of this warranty in Your use of the Pivotal Service; (ii) any claim by any third party that Your Data infringes or misappropriates, as applicable, such third party’s patent, copyright, trade secret or trademark or other intellectual property rights enforceable under applicable laws of any jurisdiction within the United States of America; (iii) any claim of infringement of any patent or copyright or misappropriation of any trade secret in which You or any of Your affiliates has a pecuniary or other material interest; or (iv) any claim by a third party arising from a compromise, loss or disclosure of Personally Identifiable Information.
6.3 Warranty Disclaimers. YOU, ON THE ONE HAND, AND PIVOTAL AND SPONSOR, IF APPLICABLE, ON THE OTHER HAND, EACH DISCLAIM ALL OTHER WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, UNINTERRUPTED SERVICE OR FITNESS FOR A PARTICULAR PURPOSE.
6.4 Third Party Content. The Pivotal Service may now or in the future be bundled with Third Party Content designed to facilitate Your use of the Pivotal Service. Pivotal does not warrant in any manner and will not be responsible for such Third Party Content and You agree to look solely to the relevant third party provider (and not Pivotal) if and to the extent that You have any complaints or issues relating to the Third Party Content or its interaction with a Pivotal Service.
6.5 Limitation of Liability. IN NO EVENT WILL PIVOTAL OR SPONSOR BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA, LOSS OF BUSINESS OR OTHER LOSS ARISING OUT OF OR RESULTING FROM THIS AGREEMENT EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING SHALL APPLY REGARDLESS OF WHETHER SUCH LIABILITY SOUNDS IN CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER THEORY OF LEGAL LIABILITY. IN ADDITION, IN NO EVENT WILL PIVOTAL'S OR SPONSOR’S CUMULATIVE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNTS PAID BY YOU TO PIVOTAL DURING THE SIX MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE ALLEGED LIABILITY.
Section 7. General Provisions
7.1 Notice. Notices regarding this Agreement to Pivotal shall be in writing and sent by first class mail or overnight courier (if from within the United States), or international courier, addressed to Pivotal at the headquarters address shown on our Website, Attn. Contracts Administrator. Pivotal may give notice applicable to Pivotal's general customer base by means of a general notice through the Pivotal messages portal, and notices specific to You by electronic mail to Your designated contact's email address on record with Pivotal, or by written communication sent by first class mail or overnight courier (if to an address within the United States), or international courier, to Your address on record in Pivotal's account information. All notices shall be deemed to have been given three (3) days after mailing or posting (if sent by first class mail), upon delivery in the case of courier, or twelve (12) hours after sending by confirmed facsimile or email.
7.2 Assignment. You may not assign this Agreement without providing prior notice to and obtaining the consent of Pivotal, which shall not be unreasonably denied provided Your account is in good standing. Any purported assignment in violation of this Section shall be void.
7.3 Integration; Exhibits; Modification. This Agreement represents the parties' entire understanding relating to the Pivotal Service and the Pivotal Materials, and supersede any prior or contemporaneous, conflicting or additional communications. Pivotal reserves the right at any time to impose new or additional terms or conditions on your use of the Pivotal Service. Such additional terms and conditions will be effective thirty (30) days after You receive written notice thereof from Pivotal. Your continued use of the Pivotal Service will be deemed acceptance thereof.
7.4 Governing Law; Jurisdiction. You agree that this Agreement, and the rights and obligations hereunder, shall be governed by, and construed in accordance with, the laws of the State of Arizona without giving effect to conflict of laws principles. You further agree that any and all disputes, controversies and claims arising out of or relating to this Agreement or concerning the respective rights or obligations of the parties hereto shall be settled and determined by arbitration before a panel of one (1) arbitrator in Maricopa County, Arizona, pursuant to the Commercial Rules of the American Arbitration Association then in effect. Judgment upon the award rendered may be entered in any court having jurisdiction or application may be made to such court for a judicial acceptance of the award and an order of enforcement. The parties agree that the arbitrator shall have the power to award damages, injunctive relief and reasonable attorneys' fees and expenses to the prevailing party. Legal action or proceeding between You and Pivotal arising out of or relating to this Agreement shall be brought exclusively in a federal or state court of competent jurisdiction located in Maricopa County, Arizona, and You hereby expressly and irrevocably consent to be bound by the personal jurisdiction and venue of such courts.
7.5 Force Majeure. Except for the obligation to pay Fees when due, neither party will be responsible for failure of performance due to causes beyond its control. Such causes include (without limitation) accidents, acts of God, labor disputes, actions of any government agency, shortage of materials, acts of terrorism, or the stability or availability of the Internet or a portion thereof.
7.6 Export. You agree that U.S. export control laws and other applicable export and import laws govern Your use of the Pivotal Service. You represent that You are neither a citizen of an embargoed country nor prohibited end user under applicable U.S. export or anti-terrorism laws, regulations and lists. You agree not to use or export, nor allow a third party to use or export, the Pivotal Service or technology in any manner that would violate applicable law, including but not limited to applicable export and import control laws and regulations.
7.7 Severability. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect.
7.8 Invalidity; Waivers. If any provision or portion of this Agreement is held invalid, illegal, void or unenforceable as it appears in this Agreement by reason of any rule of law, administrative or judicial provision or public policy, then such provision shall be construed as being enforceable to the extent such rule of law, administrative or judicial provision or public policy allows. All other provisions of this Agreement shall nevertheless remain in full force and effect. Neither of the parties shall be deemed to have waived any of its rights, powers or remedies hereunder unless the waiving party expresses such a waiver in writing.
7.9 Government End Use. If You are an agency or unit of the U.S. Government ("Government"), the Pivotal Service is provided for ultimate Government use solely in accordance with the provisions of the Federal Acquisition Regulation ("FAR") and supplements thereto, including the Department of Defense ("DoD") FAR Supplement ("DFARS", set forth in this Section. Government technical data and software rights related to the Pivotal Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR §12.211 (Technical Data) and FAR §12.212 (Computer Software) and, for DoD transactions, DFARS § 252.227-7015 (Technical Data – Commercial Items) and DFARS § 252.227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If the Government has a need for rights not conveyed under these terms, it must negotiate with Pivotal to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.