The Statement of Work and/or Services Brief (referred to herein as “SOW”) and performance of the parties thereunder is governed by and subject to these General Terms And Conditions (“T&Cs”) which by reference are incorporated and made a part of the SOW, subject to a quote. Pivotal means (i) Pivotal Software, Inc., if Customer is located in the United States; and (ii) the local Pivotal sales subsidiary, if Customer is located in a country in which Pivotal has a local sales subsidiary; and (iii) Pivotal Software International Limited, if Customer is located outside the United States and in a country in which Pivotal does not have a local sales subsidiary (in each case, referred to herein as “Pivotal”). “Customer” is identified as “Customer” or “You” herein, and collectively referred to with Pivotal as “Parties” or separately as “Party”. The T&Cs (i) are subject to change by Pivotal from time to time; (ii) in effect as of the date of the SOW shall apply for the performance of that SOW; (iii) will not apply retroactively to any SOW; and (iv) are dated and archived when superseded by a newer version.
1. SOW TERMS AND CONDITIONS. Pivotal will provide the Services as specified in the SOW and governed by the T&Cs. In the event of a conflict these T&Cs will govern unless otherwise explicitly superseded in the SOW.
2. TERM AND TERMINATION. This SOW begins on the date stated therein or, as otherwise mutually agreed between the Parties, and shall remain in effect for the term length stated in the SOW. Either Party may notify the other in case of the other’s alleged breach of a material provision of this SOW. The recipient shall have 30 days from the date of receipt of such notice to affect a cure. If the recipient of the notice fails to affect a cure within such period, then the sender of the notice shall have the option of sending a written notice of termination of the SOW, which notice shall take effect upon receipt. Notwithstanding the foregoing, Pivotal may suspend its services or terminate the SOW if Customer fails to pay an invoice when due and if such non-conformance is not cured within 10 days following receipt of notice from Pivotal.
3. ACCEPTANCE SUBJECT TO THE SOW. If Pivotal does not receive Customer’s acceptance or rejection within any Acceptance Period set out in the SOW, the Services and Work Product will be deemed accepted by Customer and Customer will have waived any right of rejection.
4. PROJECT CHANGE REQUEST. Either Party may request a modification to the Work Product or to any material provision of the SOW by submitting a Project Change Request (“PCR”). Upon receipt of a PCR, Pivotal will estimate the financial and schedule impacts, if any. The Parties will review these estimates to determine whether the PCR would be mutually acceptable. If the Parties agree on the PCR, Pivotal will attach the final PCR to the SOW. If the Parties are unable to agree within five (5) business days after the PCR is submitted, then the submitting Party may either withdraw the PCR or terminate the SOW. If the SOW is terminated, due to an ability to reach agreement on a PCR, the only payments due are for the Work Product delivered, Services performed, and expenses incurred by Pivotal prior to the termination date.
5. CUSTOMER MATERIALS DELAY. Customer acknowledges that Pivotal’s performance of the Services and delivery of the Work Product is contingent on Customer’s timely delivery of any customer materials (“Customer Materials”) provided to Pivotal in connection with the Services. Customer agrees that any reasonable scheduling or financial impacts caused by Customer’s failure to deliver Customer Materials within the specified time will be treated as a PCR.
6. PERSONNEL. Pivotal will determine the personnel assigned to perform the Services. Customer may request, in writing, with specific reasons stated, the replacement of Pivotal personnel or contractors that Customer reasonably believes are not adequately performing the Services.
7. PAYMENT TERMS. Pivotal shall submit invoices for fees and reimbursable costs and expenses on a time and materials basis, as described in the SOW, or on a fixed fee basis, plus applicable taxes and travel expenses and Customer shall pay each invoice in the manner specified in the SOW. Customer will also pay all related taxes and withholdings, except for those based on Pivotal’s net income. If Customer is required to withhold taxes, then Customer will forward any withholding receipts to Pivotal at email@example.com. Subject to Pivotal’s credit approval, all amounts are due in the currency stated on the invoice and in full 30 days after the date of Pivotal’s invoice, with interest accruing thereafter at the lesser of 1.5% per month or the highest lawful rate. If all or a portion of any invoice is determined to be incorrect, the Parties will promptly investigate and correct or confirm the dispute. Pivotal is not obligated to perform its services unless Customer is current in payment of all fees and charges due. Except as otherwise set forth herein, payment obligations by Customer to Pivotal shall survive expiration or termination of the SOW.
8. WARRANTY. Pivotal shall perform Services in a workmanlike manner in accordance with generally accepted industry standards. Customer must notify Pivotal of any failure to so perform within ten (10) days after the performance of the applicable portion of Services. Pivotal’s entire liability and Customer’s sole remedy for Pivotal’s failure to so perform shall be for Pivotal to, at its option, (i) correct such failure; and/or (ii) terminate this SOW and refund that portion of any fees received that correspond to such failure to perform. EXCEPT AS EXPRESSLY STATED IN THIS WARRANTY SECTION, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Pivotal (INCLUDING ITS SUPPLIERS) MAKES NO OTHER EXPRESS WARRANTIES, WRITTEN OR ORAL, AND DISCLAIMS ALL IMPLIED WARRANTIES. INSOFAR AS PERMITTED UNDER APPLICABLE LAW, ALL OTHER WARRANTIES ARE SPECIFICALLY EXCLUDED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE, OR USAGE OF TRADE.
9. INTELLECTUAL PROPERTY.
a. Ownership. Pivotal shall own all intellectual property rights associated with works of authorship or other products developed or created and delivered by Pivotal to Customer in the course of performing Services (“Work Product”), as well as Customer’s derivative works thereof. Customer agrees that Work Product is the sole property of Pivotal. Pivotal hereby grants to Customer a worldwide, perpetual, royalty-free license to use the Work Product for internal business purposes without the right to sublicense. No other grants of licenses or rights to Customer will be implied from the provisions stated in this T&C’s. Customer shall not obliterate or remove and will reproduce Pivotal’s intellectual property notices contained in the Work Product. Customer shall not reverse engineer, decompile, or otherwise attempt to derive source code from any portions of the Work Product delivered in object code form. Pivotal is not being engaged to perform any investigation of third party intellectual property rights including any searches of patents, copyrights, or trademarks related to the Work Product.
b. Reservation of Rights. Pivotal reserves all rights not expressly granted to Customer in this T&C’s. (“Pivotal Retained IP”). Except as expressly stated, nothing herein shall be construed to (1) directly or indirectly grant to a receiving party any title to or ownership of a providing party’s intellectual property rights in services or materials furnished by such providing party hereunder, or (2) preclude such providing party from developing, marketing, using, licensing, modifying or otherwise freely exploiting services or materials that are similar to or related to the Services or materials provided hereunder.
c. Open Source Materials Exclusion. Open source software is software provided under a license approved by the Open Source Initiative or similar open source or freeware license (“OSS” or “Open Source Software”). Unless otherwise agreed in writing in an SOW (or subsequently agreed to by the parties), OSS components governed by Artistic License (all versions), Apache License (all versions), Boost Software License, BSD, Common Development and Distribution License (CDDL), Common Public License (CPL) or IBM, Eclipse Public License (EPL), FLTK License PSA, LGPL 2.1, MIT, Mozilla (MPL) (all versions), Open LDAP License, OpenSSL, PHP License, Public Domain, Python Software Foundation License, Ruby, and zlib/libpng License, may be included in, or necessary for Customer to use Work Product but are excluded from Customer's ownership rights. Pivotal may (1) obtain such OSS on Customer's behalf, (2) incorporate it into the Work Product, and (3) submit back to open source libraries any improvements made to the OSS during the course of performing the Services, to the extent such submissions do not violate the confidentiality obligations set forth herein.
d. Third Party Materials Exclusion. Materials, (including tools that are used to deliver the Services) that are not owned or created by Pivotal (other than Open Source Software) (“Third Party Materials”), but may be included in, or necessary for Customer to use the Work Product, but are excluded from Customer's ownership rights. Customer will be solely responsible for obtaining necessary licenses to the Third Party Materials and liable for their use.
10. Service-Specific Terms.
a. Education or Training: Pivotal's Education and Training Services are listed in Pivotal's Education and Training Catalogs which are available upon request. All Education and Training Services can be ordered at Pivotal Academy.
11. BUSINESS HOURS. Services shall be performed by Pivotal from 9:00 A.M. until 5:00 P.M. in the local time zone where the Services are being performed by Pivotal, Monday through Friday excluding local statutory holidays (for example, within the State of California for Pivotal's US employees), and any additional holidays that Pivotal grants to its employees, a list of which can be provided by Pivotal to Customer prior to the commencement of the Services Period.
12. IP INDEMNITY. Subject to Section 13 ("Limitations of Liability"), Pivotal shall (a) defend Customer against any third party claim that the Services and the Work Product (excluding Open Source Software and/or Third Party Materials) delivered by Pivotal to Customer infringe a trade secret, or a copyright enforceable in a country that is a signatory to the Berne Convention, and (b) pay the resulting costs and damages finally awarded against Customer by a court of competent jurisdiction or the amounts stated in a written settlement signed by Pivotal. Customer shall (a) defend Pivotal against any third party claim that the materials provided by Customer or its agents for use by Pivotal infringe a trade secret, or a copyright enforceable in a country that is a signatory to the Berne Convention and (b) pay the resulting costs and damages finally awarded against Pivotal by a court of competent jurisdiction or the amounts stated in a written settlement signed by Customer. The foregoing obligations are subject to the following: the indemnitee (a) notifies the indemnitor promptly in writing of such claim, (b) grants the indemnitor sole control over the defense and settlement thereof, (c) reasonably cooperates in response to an indemnitor request for assistance, and (d) is not in material breach of this PSA. Should such a claim be made, or in the indemnitor’s opinion be likely to be made, the indemnitor may, at its option and expense, (a) procure for the indemnitee the right to make continued use thereof, (b) replace or modify such so that it becomes non-infringing, (c) request return of the subject material, or (d) discontinue the Services and refund the portion of any pre-paid Services fee that corresponds to the period of Services discontinuation. THIS SECTION STATES THE INDEMNITEE’S SOLE AND EXCLUSIVE REMEDY AND THE INDEMNITOR’S ENTIRE LIABILITY FOR THIRD PARTY INFRINGEMENT CLAIMS.
13. LIMITATIONS OF LIABILITY. PIVOTAL’S TOTAL LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM OF ANY TYPE WHATSOEVER, ARISING OUT OF THIS SOW OR SERVICES PROVIDED HEREUNDER, SHALL BE LIMITED TO PROVEN DIRECT DAMAGES CAUSED BY PIVOTAL’S SOLE NEGLIGENCE IN AN AMOUNT NOT TO EXCEED THE PRICE PAID TO PIVOTAL FOR THE SERVICES RENDERED HEREUNDER. EXCEPT WITH RESPECT TO CLAIMS REGARDING VIOLATION OF PIVOTAL’S INTELLECTUAL PROPERTY RIGHTS, NEITHER CUSTOMER NOR PIVOTAL SHALL HAVE LIABILITY TO THE OTHER FOR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, REVENUES, DATA AND/OR USE), EVEN IF ADVISED OF THE POSSIBILITY THEREOF.
14. CONFIDENTIAL INFORMATION. “Confidential Information” means any information that is marked “confidential” or “proprietary” or any other similar term or in relation to which its confidentiality should by its nature be inferred. Confidential Information does not include information that is (i) rightfully in the receiving party’s possession without prior obligation of confidentiality from the disclosing party; (ii) a matter of public knowledge (or becomes a matter of public knowledge other than through breach of confidentiality by the other party); (iii) rightfully furnished to the receiving party by a third party without confidentiality restriction; or (iv) independently developed by the receiving party without reference to the disclosing party's Confidential Information. Each party shall (i) use Confidential Information of the other party only for the purposes of exercising rights or performing obligations in connection with this T&C’s or any order/SOW hereunder; and (ii) protect from disclosure to any third parties any Confidential Information disclosed by the other party for a period commencing upon the date of disclosure until three (3) years thereafter, except with respect to Customer data, which shall remain Confidential Information until one of the exceptions stated in the above definition of Confidential Information applies. Notwithstanding the foregoing, either party may disclose Confidential Information (i) to an Affiliate for the purpose of fulfilling its obligations or exercising its rights hereunder as long as such Affiliate complies with the foregoing; and (ii) if required by law or regulatory authorities provided the receiving party has given the disclosing party prompt notice.
15. FEEDBACK LICENSE. The Parties agree that any feedback or suggestions (“Feedback”) (if any) given hereunder is voluntary. Each party is free to use, disclose, reproduce, license or otherwise distribute the Feedback relating to its own products and services, without any obligations or restrictions of any kind, including intellectual property rights.
16. GENERAL. This SOW is governed by the laws of California. Each Party hereby expressly consents to the personal jurisdiction of either the California courts or the United States District Courts located in the State of California and agrees that any action relating to or arising out of the T&C’s shall be instituted and prosecuted only in the Superior Court of the County of San Francisco or the United States District Court for the Northern District of California. The U.N. Convention on Contracts for the International Sale of Goods does not apply. These T&Cs and the SOW comprise the complete statement of the agreement of the parties with regard to the subject matter thereof; and may be modified only by written agreement. Customer shall not assign these T&C’s nor a purchase order or SOW or any right herein or delegate any performance without Pivotal’s prior written consent, which consent shall not be unreasonably withheld. Pivotal may use Pivotal Affiliates or other sufficiently qualified subcontractors to provide Services to Customer, provided that Pivotal shall remain responsible to Customer for the performance thereof. If any part of this SOW is held unenforceable, the validity of the remaining provisions shall not be affected. The parties shall act as independent contractors for all purposes under this SOW. Nothing contained herein shall be deemed to constitute either party as an agent or representative of the other party, or both parties as joint venturers or partners for any purpose. Neither party shall be responsible for the acts or omissions of the other party, and neither party will have authority to speak for, represent or obligate the other party in any way without the prior written approval of the other party.