LICENSING AGREEMENT
I. Introduction.
1.01 Definitions. As used herein, the following terms shall have the meanings set forth in this Section 1.01, unless the context otherwise clearly requires:
(a) Pivot Point Partners LLC shall be referred to as “Pivot Point”, “we”, “our” or similar phrases.
(b) “Client”, “you”, “your” and similar phrases refer to a person or entity to whom Services are provided, and includes Client’s authorized employees, agents and users.
(c) “Services” means Pivot Point’s Field App Suite (the “Suite”), which includes the Field App Mobile Application, the Field App Administrative Portal website (currently https://field.pivotpoint.us) (the “Website”), proprietary software, and supporting services to be provided by Pivot Point to Client, as set forth in the Scope of Services.
(d) “Agreement” shall mean Pivot Point’s Purchase Order(s), Scope of Services and this Licensing Agreement by and between Pivot Point and Client, including any exhibits attached thereto or made a part thereof. In circumstances where a third-party has provided products or services through a separate license with respect to the Services, the term “Agreement” shall include the written contract or record by and between Pivot Point and such third party as it relates to the Services.
(e) “Business Unit” means the specific governmental office, division or operations unit identified in the Scope of Services authorized to use the Services.
(f) “Licensed Software” means the proprietary software of Pivot Point Partners LLC that supports Pivot Point’s Services.
1.02 Changes and Modifications. This Licensing Agreement may be updated, modified or changed, from time to time, by Pivot Point, and posting such changes to the Website shall be sufficient notice thereof to our Clients. If you do not agree to be bound by the Licensing Agreement, you shall suspend using our Services and notify us, in writing, of such fact immediately so that appropriate adjustments may be made.
1.03 Privacy Policy. By entering to this Agreement, Client also agrees to adhere to the terms of Pivot Point’s privacy policy (http://pivotpoint.us/privacy-policy).
II. Software Licensing and Support.
2.01 Grant of License. Pivot Point hereby grants to Client a non-exclusive, non-transferrable, non-sublicensable, non-assignable, restricted license to use the Services and related Licensed Software for internal business purposes only. If you download software from our Field App, the software (including all files and images contained in or generated by the software), and accompanying data are deemed to be licensed to you by Pivot Point (or any third party that may have created it) and is considered “Licensed Software” under this Licensing Agreement. Neither title nor intellectual property rights are transferred to you, but remain with Pivot Point or such other third parties, who own full and complete title. This License Agreement provides to you an unlimited number of seats; however, such seats are to be used only by your authorized employees and users.
2.02 Prohibited Uses. The Licensed Software, material and data are provided for lawful purposes only. Software, material and data from Pivot Point and any website owned, operated, licensed, sublicensed or controlled by Pivot Point may not be copied or distributed, or republished, uploaded, posted or transmitted, in any way, without the prior written consent of Pivot Point. Modification or use of the materials for any other purpose violates the intellectual property rights of Pivot Point. You may not resell, decompile, reverse engineer, disassemble or otherwise convert the Licensed Software to a human perceivable form. You may not use Pivot Point’s Licensed Software for or in connection with offering any third-party product or service not authorized or approved by Pivot Point. Additionally, if any third-party software is provided to you by or through Pivot Point, you shall be subject to all licenses, terms, limitations and requirements of such third-party with respect to its software.
2.03 Designated Hardware. Client agrees to deploy or install the Services and the Licensed Software on hardware meeting or exceeding the requirement as specified in the Scope of Services or otherwise recommended by Pivot Point. Pivot Point will only support hardware that has undergone validation testing. If Client uses non-supported hardware, Pivot Point cannot guarantee it can provide the same level of functionality as supported and validated hardware. Client shall not install, download or operate the Licensed Software on hardware not owned by or under the control of Client.
2.04 Data Collection. Client will remain the owner of any data exported, extracted, or otherwise delivered from their possession to Pivot Point. Pivot Point will abide by the terms of its Privacy Policy found at http://pivotpoint.us/privacy-policy regarding the collection, use and sharing of personally identifiable information. Nevertheless, Pivot Point may use tools, scripts, software, and utilities (collectively, the “tools”) to monitor and administer the Services and to help resolve your service requests. The tools will not collect, report or store any of your data residing in the service production environment, except as necessary to troubleshoot service requests or other problems in the service. Data collected by the tools (excluding production data) may also be used to assist in managing product and service portfolio and for license management.
2.05 Pre-Release Product – Additional Terms. If the Services received by Client are pre-commercial release or beta Software (“Pre-release Software”), then this Section 2.05 applies. To the extent that any provision in this Section 2.05 is in conflict with any other term or condition, this Section 2.05 shall supersede such other terms and conditions with respect to the Pre-release Software, but only to the extent necessary to resolve the conflict. Client acknowledges that the Services are a pre-release version, does not represent a final product from Pivot Point, and may contain bugs, errors and other problems that could cause system or other failures and data loss. CONSEQUENTLY, THE PRE-RELEASE SOFTWARE IS PROVIDED TO YOU “AS-IS” AND WITH ALL FAULTS, AND PIVOT POINT EXPRESSLY DISCLAIMS ANY WARRANTY OR LIABILITY OBLIGATIONS TO YOU OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY. WHERE LEGAL LIABILITY CANNOT BE EXCLUDED FOR PRE-RELEASE SOFTWARE, BUT MAY LIMIT PIVOT POINT’S TOTAL LIABILITY TO YOU OR TO ANY THIRD PARTY UNDER THIS AGREEMENT (AND THAT OF ITS SUPPLIERS) AND SHALL BE LIMITED TO THE SUM OF FIFTY DOLLARS (U.S. $50) IN TOTAL. You acknowledge that Pivot Point has not promised or guaranteed to you that Pre-release Software will be announced or made available to anyone in the future, that Pivot Point has no express or implied obligation to you to announce or introduce the Pre-release Software and that Pivot Point may not introduce a product similar to or compatible with the Pre-release Software. Accordingly, you acknowledge that any research or development that you perform regarding the Pre-release Software or any product associated with the Pre-release Software is done entirely at your own risk. If you have been provided the Pre-release Software pursuant to a separate written agreement, your use of such Software is governed by such agreement. You may not sublicense, lease, loan, rent, distribute or otherwise transfer the Pre-release Software. Upon receipt of a later unreleased version of the Pre-release Software or release by Pivot Point of a publicly released commercial version of the Services, whether as a stand-alone product or as part of a larger product, you agree to return or destroy all earlier Pre-release Software received from Pivot Point and to abide by this Licensing Agreement for any such later versions of the Pre-release Software. If you provide any feedback or suggestions to Pivot Point regarding the Pre-release Software, Pivot Point will own all right, title, and interest in and to the feedback and/or suggestions. Pivot Point will be entitled to use the feedback and/or suggestions without restriction, without compensation to you and without your prior approval. You hereby irrevocably assign to Pivot Point all right, title, and interest in and to the feedback and/or suggestions and agree to provide Pivot Point any assistance it may require to document, perfect, and maintain its rights in the feedback and/or suggestions.
2.06 Maintenance and Support. Pivot Point shall provide maintenance and support services to maintain the Services and Licensed Software and to provide technical support, software updates, and other services as set forth in the Scope of Services. Unless otherwise set forth in an applicable Scope of Services, support calls for service will be provided during regular business hours (8:00am-4:30pm EST Monday through Friday), and will be responded to in a maximum of one (1) business day for standard inquiries and four (4) hours for emergency inquiries received during regular business hours; or otherwise resolved as soon as reasonably possible if received before or after regular business hours.
III. Termination.
3.01 Cooperation After Termination. Pivot Point shall reasonably cooperate with Client following the termination of the Agreement regarding Client’s information, provided that Client agrees to reasonably compensate Pivot Point for such services. Pivot Point reserves the right to require advance payment for all or some of such services. Additionally, such services shall be subject to this Licensing Agreement. Client shall take whatever actions are required to terminate the use of Services by Client, and shall be liable to Pivot Point for the intended or unintended use of such Services after termination, as reasonably determined by Pivot Point. Any such amounts shall be paid by Client in accordance with Section 3.01, above.
IV. Warranties; Liability; Indemnity.
4.01 Express Limited Warranty Provided by Pivot Point. Pivot Point warrants to Client that it will perform the Services in substantial compliance with the Scope of Services and this Licensing Agreement.
4.02 Client’s Remedies Under the Warranty. The exclusive remedy of Client with regard to the warranty set forth in Section 4.01, and Pivot Point’s liability to Client with regard to such warranty, is limited, at Pivot Point’s option, to: (a) the repair or replacement of that portion of the Services which does not conform with the warranty, as reasonably determined by Pivot Point; or (b) a refund of the applicable portion of the Fee, as reasonably determined by Pivot Point. For the avoidance of doubt, the aggregate liability amount set forth in the last sentence of Section 4.05 also shall limit Client’s remedies with respect to a breach of warranty.
4.03 Exclusions from Pivot Point’s Express Warranty. The warranty set forth in 4.01 shall not cover: (a) Client’s failure to provide or maintain any standard or required versions of software or operating systems and maintenance specifications; (b) modifications, alterations or changes made by anyone other than Pivot Point; (c) damage or destruction due to any hazard coverable under the standard form of fire and extended coverage insurance policy issued in the state where Client is located; or (d) failure of the Client to abide by its obligations under the Agreement.
4.04 Exclusion of Implied Warranties. Except for the warranty set forth in Section 4.01, there are no other warranties with regard to the Services, or any other software, goods or services licensed, sold or provided by Pivot Point to Client. MORE PARTICULARLY, BUT NOT BY WAY OF LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE ARE SPECIFICALLY EXCLUDED.
4.05 Limitation of Liability. The fees charged by Pivot Point for the Services are based upon the allocation of risks and benefits, as set forth in this Licensing Agreement. Therefore, except for the warranty set forth in Section 4.01 (and subject to the limitations set forth in Sections 4.02 and 4.03), Client agrees that Pivot Point shall not be liable to Client, Client’s authorized employees, agents and users of the Services or to any other party for direct, indirect, consequential or economic damages due to any reason or cause whatsoever, including, the failure or malfunction of Client’s systems or any other software, goods or services provided by Pivot Point to Client. Also, Pivot Point shall not be liable to Client or any third party with respect to the loss or damage to data or information. Finally, Client agrees to limit the liability of Pivot Point, its officers, employees, agents, subcontractors, independent contractors, third party vendors, agents, authorized representatives and resellers to Client or any third party for all claims and causes, including negligence, breach of warranty (including the warranty set forth in Section 4.01), breach of contract, errors, omissions or strict liability, arising out of or any way related to the Services so as to not exceed, in the aggregate, all applicable fees paid by Client or $10,000, whichever is less. Notwithstanding the foregoing, the limitations of liability referred to in this Section 4.05 shall be increased by an amount equal to any insurance coverage with respect to Pivot Point’s errors and omissions actually available at the time of settlement or judgment.
4.06 Application to Agents. In situations where Services are provided, in whole or in part, pursuant to a written contract or record between Pivot Point and an agent or authorized representative of Client, the terms and conditions of this Agreement, including the limitations on claims, remedies and liabilities set forth in this Section 4, also shall apply to all such parties.
4.07 Indemnity. Pivot Point will indemnify and defend Client, at Pivot Point’s expense, against any claim or any action brought, and will pay any and all costs, liabilities, expenses, settlements, or judgments finally awarded in favor of a third party against Client, based upon any claim that the Licensed Software infringes any valid U.S. patent, copyright or trade secret, provided that Client: (i) promptly notifies Pivot Point in writing of any such claim; (ii) gives Pivot Point full authority and control of the settlement and defense of the claim; (iii) has not made any admission or offer to settle and (iv) fully cooperates with Pivot Point in the defense of such claims, including providing adequate assistance and information. The indemnity provided hereunder shall not apply to amounts paid in settlement of any claim if such settlement is made without Pivot Point’s prior written consent.
4.08 This indemnity does not apply to, and Pivot Point will have no obligation to Client for, any infringement claim that arises from: (i) any modification to the Licensed Software by anyone other than Pivot Point unless approved in writing by Pivot Point; (ii) modifications made by Pivot Point at Client’s request in compliance with Client’s design, specifications or instructions; (iii) use of the Licensed Software other than as specified in this Agreement or in the applicable documentation; (iv) use of the Licensed Software in conjunction with third-party software, hardware or data other than that with which the Licensed Software is specifically designed to be used, solely as expressly specified in the documentation or this Agreement, or (v) use of a prior version of the Licensed Software, if the infringement claim could have been avoided by the use of the current version of the Licensed Software.
4.09 If an infringement claim arises, or in Pivot Point’s reasonable opinion is likely to arise, Pivot Point may, at its own expense and in its own discretion, obtain for Client the right to continue using the Licensed Software, modify the Licensed Software to make it non-infringing, or substitute other Licensed Software of substantially similar capability and functionality. If none of these options are reasonably available to Pivot Point, Pivot Point may terminate the License for the infringing Licensed Software and refund to Client the annual fee paid for the infringing Licensed Software, less a reasonable charge for Client’s use of the Licensed Software prior to such termination. THIS SECTION 4 STATES THE ENTIRE OBLIGATION OF PIVOT POINT AND THE EXCLUSIVE REMEDIES OF CLIENT WITH RESPECT TO ANY CLAIMS OF INFRINGMENT OR INTELLECTUAL PROPERTY RIGHTS VIOLATIONS.
V. Miscellaneous Provisions.
5.01 Assignment. The rights and obligations under the Agreement are not assignable by Client without the prior written consent of Pivot Point, which consent shall not be unreasonably withheld. Acceptance of payment or performance by any other party shall not be deemed to be a consent by Pivot Point to an assignment. No assignment shall relieve Client of its liability hereunder unless Pivot Point otherwise agrees in writing when granting such consent. Subject to the provisions set forth above, the Agreement shall be binding upon and inure to the benefit of the legal representatives, successors and assigns of any or all of the parties hereto.
5.02 Non-Waiver. No provision of the Agreement shall be deemed to have been waived unless such waiver is in writing and signed by the party affected thereby.
5.03 Severability. If any clause or provision contained in the Agreement is held to be illegal, invalid or unenforceable, under any present or future law, the remaining terms hereof shall not be affected thereby. In lieu of such clause or provision held to be illegal, invalid or unenforceable there shall be added a clause or provision as similar in terms as possible which shall be legal, valid and enforceable.
5.04 Compliance with Law. The use by Client and Client’s authorized employees, agents and users of the Services, including the Suite, shall be in compliance with all applicable laws, statutes, ordinances and governmental regulations. Client shall indemnify, defend and hold Pivot Point harmless from any cost, expense, demand, claim, fine, action, cause of action or other liability arising out of or related to the unlawful use of the Services by Client or its authorized employees, agents or users.
5.05 Future Dealings. This Licensing Agreement shall be applicable to all future transactions and dealings between Pivot Point and Client, unless otherwise agreed to in writing by both Pivot Point and Client.
5.06 Confidentiality. In the course of negotiating, implementing and providing services under the Agreement, Pivot Point and Client may reveal to each other information regarding business data, research, development, manufacturing, clients, vendors, agents, employees, marketing plans, business plans, trade practices, financial information and related matters that are confidential and proprietary. All of such information is hereinafter referred to as “Confidential Information”. All Confidential Information shall be deemed to be confidential and proprietary information belonging to the disclosing party and shall be maintained by receiving party in confidence. The parties shall familiarize their respective officers, agents and employees that have access to Confidential Information, or conducting work in relation thereto, with the obligations hereunder. Each party shall take all reasonable precautions, including the establishment of appropriate procedures and disciplines, to safeguard the confidential nature of any Confidential Information. The disclosure of Confidential Information between the parties hereunder shall not be construed as granting either a license under any intellectual property rights or applications therefor, or any right of ownership or use of any kind therein. All Confidential Information shall remain the property of the party disclosing the same. Confidential Information shall not include any information that: (a) is or becomes generally available to the public other than as a result of a violation of the obligations hereunder; (b) was in a party’s possession prior to disclosure by the other party; or (c) was rightfully acquired from a third party who was lawfully in possession of such information and was under no obligation to maintain its confidentiality.
5.07 Rules of Construction. Unless the context otherwise clearly requires, the following rules of construction shall apply to this Licensing Agreement:
(a) Terms that imply gender shall apply to all genders. All references to the singular shall be deemed to include the plural, and all references to the plural shall be deemed to include the singular.
(b) Headings are included solely for purposes of reference and shall be ignored in construing the provisions of this Licensing Agreement.
(c) “Herein”, “hereto”, “hereof” and words of similar import refer to this Licensing Agreement.
(d) The word “and” connotes “each and every”, and the word “or” connotes “any one or more”.
(e) The word “including”, is deemed to be followed by the words “without limitation”.
(f) Any reference to the Agreement, Scope of Services, this Licensing Agreement or other document or record refers to that Agreement, Scope of Services, Licensing Agreement or other document or record as amended, modified or restated, from time to time.
(g) Any reference to a person or entity shall be construed as a reference to that person or entity’s successors, affiliates, assigns, heirs, personal representatives, agents or authorized representatives.
(h) In the event of a direct conflict between the Scope of Services and this Licensing Agreement, the terms of the Scope of Services shall control. In the event of a conflict between this Licensing Agreement and any written contract or record between Client and a third party of the Services, this Licensing Agreement shall control.