PIVOTAL TRACKER WEB SERVICES AGREEMENT
Last Revision: Jan 15, 2011 (new policies for paid accounts)
THIS IS A LEGAL AGREEMENT BETWEEN YOU, A PERSON OR ENTITY WHO REGISTERS AND PURCHASES PIVOTAL TRACKER SERVICE PLAN (“Paid User”) OR WHO REGISTERS TO USE THE FREE VERSION OF THE PIVOTAL TRACKER SERVICE OR REGISTERS UPON RECEIVING AN INVITATION FROM A PAID USER (“User”) OR (Users and Paid Users, collectively “Customer(s)”) AND PIVOTAL LABS, INC. (“Pivotal”) REGARDING CUSTOMER’S USE OF PIVOTAL TRACKER SERVICE ON THE PIVOTAL SITE. BY CLICKING “I ACCEPT” CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT.
1. DEFINED TERMS
- 1.1 Agreement means this Pivotal Tracker Web Services Agreement together with any rules and restrictions that apply to the Plan Customer selects as set forth on the Plans and Billing Page.
- 1.2 Confidential Information means the Pivotal Tracker Service and any information disclosed by Pivotal to Customer, either directly or indirectly in writing, orally, or by inspection of tangible objects relating to the Pivotal Tracker Service including without limitation data, text, pictures, audio, video, logos and copy.
- 1.3 Customer’s Data means any data, information or material submitted by Customer during its use of the Pivotal Tracker Service.
- 1.4 Effective Date means the day the Customer clicks to accept this Agreement.
- 1.5 Plan means the plan that the Customer selects from the Plans and Billing Page.
- 1.6 Plans and Billing Page means the account plans and billing page on the Pivotal Tracker site located at: https://pivotaltracker.com/accounts.
- 1.7 Pivotal Site means the Pivotal website located at http://www.pivotaltracker.com
- 1.8 Pivotal Tracker Service means Pivotal’s Pivotal Tracker Service product that Pivotal makes available to Customers over the Internet by means of the Pivotal Site.
- 1.9 Subscription Fees means the fees paid by Paid User to Pivotal in consideration of Paid User’s use of the Pivotal Tracker Service.
- 1.10 Term means the term of the Plan you select on the Plans and Billing Page.
2. SERVICES; CUSTOMER PLANS AND ACCOUNTS; CUSTOMER DATA
- 2.1 Services. Pivotal shall provide to Customer access to Pivotal Tracker to be hosted and operated on Pivotal’s computer servers and any applicable additional services in accordance with the terms of the Plan the Customer selects from the Plans and Billing Page.
- 2.2 Changing Plans. Users may upgrade to a for-fee Plan at any time. Paid Users, as Account Owners (as defined below), may upgrade their Plan at any time, upon payment of additional license fees as set forth in Pivotal’s then-current price list (or as otherwise set forth on the Price and Billing Page).
- 2.3 Customer Accounts. When a Customer signs up for the Pivotal Tracker Service, Pivotal will automatically create an account (“Account”) for the Customer. Customers may create multiple Accounts in accordance with the terms of the Customer’s Plan. The Customer employee who registers for the Pivotal Tracker Service shall be deemed the Account owner (“Account Owner”) unless the Customer designates another Customer as the Account Owner. A Customer may designate any other Customer to be an Account administrator of his or her Account. Customer is responsible for all activity occurring under its Account. Each Account will be associated with one Plan. Pivotal reserves the right to modify any of its Plans. To collaborate Customers may create one or more projects (each, a “Project”) using the Pivotal Tracker Service. All Projects are associated with a single Account. Each project may have one or more Customers (hereinafter, “Project Members”). Customer shall notify Pivotal immediately of any unauthorized use of any password, account, copying or access to the Pivotal Tracker Service. Each Customer shall have a unique login (email address and username) (“UserID”), which may not be shared, but may be reassigned to new Customers replacing former Customers.
- 2.4 Customer’s Data. Pivotal does not own any of the Customer’s Data. Customer is solely responsible for the accuracy, integrity, and legality of Customer’s Data. Notwithstanding anything to the contrary in this Agreement, Pivotal shall not be responsible or liable for the deletion, corruption, correction, destruction, damage, loss or failure to any of Customer’s Data. Customer shall not knowingly send or store spam, unlawful, infringing, obscene, or libelous material, or viruses, worms, Trojan horses and other harmful code, or data which violates the rights of any individual or entity established in any jurisdiction including, without limitation, medical information, credit card information or social security numbers, driver’s license or personal identification numbers or account numbers on, to or from the Pivotal Tracker Service. Customer represents and warrants that it is in compliance with and will comply with all applicable privacy and data protection laws and regulations with respect to any of Customer’s Data uploaded or submitted to the Pivotal Tracker Service and its use of the Pivotal Tracker Service and performance of its obligations under this Agreement. Customer will indemnify, defend and hold Pivotal harmless from any claims, losses and causes of action arising out of or related to Customer’s breach of this Section 2.4.
- 2.5 User IDs and Security. Customer may allow any Customer to use the Pivotal Tracker Service. No User ID may be shared by more than one Customer. The Customer is entirely responsible for maintaining the confidentiality of its User IDs and account information. The Customer acknowledges and agrees that as between the parties, Customer is solely responsible for Customers’ use of the Pivotal Tracker Services and all acts, omissions and use of User IDs or passwords or in connection with the Pivotal Tracker Services.
3. USER CONDUCT/ACCEPTABLE USE POLICY
Customers may not use the Pivotal Tracker Service in any way that violates applicable federal, state, or international law, or for any unlawful purpose. Customers may not use the Pivotal Tracker Service to send, receive, or download messages or materials that are inappropriate or violate the intellectual property rights of Pivotal or others. Customers are entirely responsible for the content of, and any harm resulting from any of their postings or submissions to the Pivotal Site and Pivotal Tracker Service (collectively, “Contributions”). When you create or make available a Contribution, you represent and warrant that you:
- (a) will not attempt to harm, disrupt, or otherwise engage in activity that diminishes, the Pivotal Site, computer systems and network, or the Pivotal Tracker Service and will not post Contributions that constitute, contain, install or promote spyware, malware or other computer code, whether on Pivotal’s or others’ computers or equipment, designated to enable you or others to gather information about or monitor the online or other activities of another party;
- (b) will not attempt to interfere with any other person's use of the Pivotal Tracker Service;
- (c) will not misrepresent your identity or impersonate any person or entity, sell or let others use your profile or password, provide false or misleading identification or address information, or invade the privacy, or violate the personal or proprietary right, of any person or entity;
- (d) will not attempt to gain access to any account, computers or networks related to the Pivotal Tracker Service without authorization;
- (e) will not attempt to obtain any data through any means from the Pivotal Tracker Service, except if we intend to provide or make it available to you;
- (f) will not attempt to charge others to use the Pivotal Tracker Service either directly or indirectly;
- (g) will not use the Pivotal Tracker Service to participate in pyramid schemes or to transmit chain letters, or to create an undue burden on the Pivotal Site or the networks or services connected to the Pivotal Site, including, without limitation, hacking into the Pivotal Site, or using the system to send unsolicited or commercial emails, bulletins, comments or other communications;
- (h) will not use the Pivotal Tracker Service for any unauthorized purpose including collecting usernames and/or email addresses of other users by electronic or other means for the purpose of sending unsolicited e-mail or communications or unsolicited commercial e-mail or other communications or engaging in unauthorized faming of, or linking to, the Pivotal Site without the express written consent of Pivotal;
- (i) will not post Contributions that (1) are defamatory, damaging, disruptive, unlawful, inaccurate, pornographic, vulgar, indecent, profane, hateful, racially or ethnically offensive, obscene, lewd, lascivious, filthy, threatening, excessively violent, harassing, or otherwise objectionable or incite, encourage or threaten immediate physical harm against another, including but not limited to Contributions that promote racism, bigotry, sexism, religious intolerance or harm against any group or individual, or (2) contain material that solicits personal information from anyone under 13 or exploits anyone in a sexual or violent manner;
- (j) will not use the Pivotal Tracker Service to send or otherwise make available, any Contribution unless you own or have sufficient rights to such Contribution or have received all necessary consents to post such Contribution;
- (k) will not post Contributions that violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of Pivotal or any other person;
- (l) have fully complied with any third-party licenses relating to Contributions, agree to pay for all royalties, fees and any other monies owning any person by reason of Contributions that you posted to or through the Pivotal Site;
- (m) will not use the Pivotal Tracker Service to send or otherwise making available any material that contains viruses, Trojan horses, worms, corrupted files, or any other similar software that may damage the operation of another's computer or property;
- (n) will not use the Pivotal Tracker Service to download any material sent by another user of the Pivotal Tracker Service that you know, or reasonably should know, cannot be legally distributed in such manner;
- (o) will not use the Pivotal Tracker Service to violate any code of conduct or other guidelines which may be applicable to the Pivotal Tracker Service or the Pivotal Site;
- (p) will not attempt to modify, translate, adapt, edit, copy, decompile, disassemble, or reverse engineer any software used or provided by Pivotal in connection with the Pivotal Site, Pivotal Tracker Service; or
- (q) will not post Contributions that contain advertisements or solicit any person to buy or sell any products or services (other than Pivotal products and services).
4. GRANT OF LICENSE TO PIVOTAL
As between you and Pivotal, you exclusively own all rights in and to the Contributions that you submit to the Pivotal Site. Pivotal needs a limited license from you so that we can use your Contributions to make the Pivotal Tracker Services and Pivotal Site available to you. For example, if you upload product specifications, product drawings or a animated graphic presentation of how a product works to the Pivotal Site, we need a license from you to display, perform and distribute these Contributions in order to make these Contributions available to you on your project pages. And, if you permit third parties (such as your customers or consultants) to view your project pages, we need to have a license to sub-license your Contributions to these third parties so that they can view and use your group pages.
By making a Contribution to the Pivotal Site, you grant to Pivotal a limited, perpetual, non-exclusive (meaning you are free to license your Contribution to anyone else in addition to Pivotal), fully-paid, royalty-free (meaning that Pivotal is not required to pay you to use your Contribution), sub-licensable (subject to the restrictions below), transferable (solely because we need the right to transfer this license to a successor Pivotal Site operator) and worldwide (because the Internet and the Pivotal Site are global in reach) license to use, modify, perform, display, reproduce and distribute the Contribution for the sole purpose of operating the Pivotal Site and Pivotal Tracker Services. Pivotal needs the right to “modify” and “reproduce” your Content, because the software and servers hosting the Pivotal Site modify and reproduce your Content automatically in order to make the Pivotal Site and Pivotal Tracker Service available.
We will only sublicense your Contribution for the following purposes: (a) to make your Contributions available to any third party (such as a client or a contractor) that you permit to view your project pages on the Pivotal Site; and (b) to permit a third party hosted services provider to host the Pivotal Site.
Customer shall not: (a) rent, lease or loan the Pivotal Tracker Service; (b) conduct automated functionality tests or load tests on the Pivotal Tracker Service; (c) attempt to gain access to data that is not Customer’s Data, or use a disproportionate amount of the Pivotal Tracker Service that interrupts or degrades the Pivotal Tracker Service; or (d) use the Pivotal Tracker Service in any manner that violates any applicable law or regulation, including without limitation any third party copyright or other intellectual property or proprietary right.
6. MAINTENANCE AND SUPPORT
Pivotal will provide maintenance and support services in accordance with the terms of the Plan selected by Customer. Pivotal’s obligations, if any, to provide maintenance and support is subject to the following: (a) Customer shall provide Pivotal with access to its employees to duplicate and resolve errors; (b) Customer shall provide supervision, control and management of the use of the Pivotal Tracker Service; (c) Customer shall document and promptly report all errors or malfunctions in the Pivotal Tracker Services to Pivotal, and (d) Customer shall take all steps necessary to carry out procedures for the rectification of errors or malfunctions within a reasonable time after such procedures have been received from Pivotal.
7. EVALUATION TRIAL; SUBSCRIPTION FEES AND PAYMENT
- 7.1 Evaluation Trial. When an Account is first created, an Account is automatically placed on a sixty (60) day free evaluation trial (the “Evaluation Trial”). During the Evaluation Trial, an unlimited number of Projects and Project Members may be associated with the Account, and the Account shall have access to the full functionality of the Pivotal Tracker Service. A credit card is not required for the Evaluation Trial. At the end of the Evaluation Trial, if the User does not explicitly upgrade to a paid Plan, the Account will transition to the free Plan as described on the Plans and Billing Page. If the Account exceeds the limits associated with the free Plan, the Account will be suspended, and all Projects in the Account will become read-only until the Account is either (a) brought below the free Plan limits or (b) User purchases a paid Plan for which such Account qualifies. A User may upgrade an Account to a paid Plan prior to the expiration of the Evaluation Trial, but Pivotal will not charge a User fees until after the Evaluation Trial except as may be set forth on the Plans and Billing Page.
Only the first Account that a User creates will be subject to the Evaluation Trial. Additional Accounts that a User creates will start on the free Plan, as published on the Plans and Billing Page. Users may not move Projects in or out of Accounts that are on the Evaluation Trial. Each User is entitled to only one Evaluation Trial. If a User is a company, only one employee or consultant of such User is entitled to receive the Evaluation Trial.
- 7.2 Subscription Fees. The amount of the Subscription Fees, if any, are determined by the Plan selected on the Plans and Billing Page. If a Paid User wants to add more users that are permitted under Paid User’s Plan, the Paid User must upgrade to a Plan with higher member limits. Subscription Fees for the new Plan will be calculated on a pro-rated basis for the remainder of the Term as specified in more detail on the Plans and Billing Page. In the event of cancellation or termination of this Agreement, no refunds will be made. User is responsible for all taxes, other than taxes levied on Pivotal’s income. Subscription Fees do not include any applicable taxes. If Pivotal is required to pay any sales, use, goods and services, value added, or other taxes in relation to Paid User’s purchase, those taxes will be billed to and paid by Paid User.
- 7.3 Payment. Paid Users shall select either annual or monthly billing for the applicable Subscription Fees. Paid User shall pay the Subscription Fees to Pivotal on the date Paid User first upgrades to a paid Plan (the “First Upgrade Date”) and on every monthly anniversary thereof (if Paid User has selected monthly billing) during the term of the Agreement and on every yearly anniversary of the Effective Date (if Paid User has selected annual billing) during the term of the Agreement. All Subscription Fees will be automatically billed to Paid User’s credit card. Paid User may upgrade from a paid Plan to another paid Plan at any point during the then-current term of the Agreement, and Paid User will be immediately charged, on a pro-rated basis, for the remainder of the then-current billing cycle. If either party terminates the Agreement before the end of the then-current term, Pivotal shall not refund any fees to Paid User.
8. TERM, TERMINATION AND SURVIVAL
- 8.1 Term. This Agreement shall begin on the Effective Date and continue for the Term subject to earlier termination by either Pivotal or Customer in accordance with this Agreement. Thereafter, the Agreement will automatically renew for successive one-year terms unless and until either party provides written notice to the other party, at least 30 days prior to the expiration of the then current term of its intention not to renew the Agreement or unless earlier terminated by either party in accordance with this Agreement.
- 8.2 Termination. Either party may immediately terminate this Agreement as follows: (a) if either party materially breaches its obligations under this Agreement and fails to cure such breach within thirty (30) days after it has been notified in writing of such breach; or (b) if either party has instituted against it any proceedings seeking relief, reorganization or arrangement under any laws relating to insolvency and such proceeding is not resolved within sixty (60) days.
- 8.3 Survival. The provisions of Sections 1, 2.4, 2.5, 3-5, 7.2, 7.3 and 8-17 shall survive the cancellation or termination of this Agreement. All other provisions of this Agreement, which by their terms or import are intended to survive such cancellation or termination, shall survive.
9. NO LICENSE; INTELLECTUAL PROPERTY OWNERSHIP
Pivotal hereby reserves all right, title and interest in and to the Pivotal Tracker Service and all intellectual property rights related thereto not expressly granted in this Agreement. Customer shall not reverse engineer or otherwise attempt to derive source code from the Pivotal Tracker Services.
- 10.1 Definition. “Confidential Information” shall mean all non-public information, whether in oral, written or other tangible form that either party (“Discloser”) discloses to the other party (“Recipient”) as being confidential, including without limitation the terms and conditions of this Agreement. Notwithstanding the foregoing, Confidential Information does not include information that: (a) is or becomes generally available to the public other than (i) as a result of a disclosure by Recipient or its employees or any other person who directly or indirectly receives such information from Discloser or its employees or (ii) in violation of a confidentiality obligation to Discloser that is known to Recipient, (b) is or becomes available to Recipient on a non confidential basis from a source which is entitled to disclose it to the Recipient, (c) was developed by employees or agents of Recipient independently of and without reference to any information communicated to Recipient by Discloser, or (d) is disclosed pursuant to an order of a court or other governmental body; provided that Recipient shall provide prompt notice thereof to Discloser so as to afford Discloser an opportunity to intervene and prevent or limit any such disclosure.
- 10.2 Non-Disclosure and Non-Use Obligation. Recipient shall not make use of (except for purposes of this Agreement), or disseminate or in any way disclose Discloser’s Confidential Information. Recipient shall treat Discloser’s Confidential Information with the same degree (but not less than a reasonable degree) of care as it accords its own confidential information. Recipient may disclose Confidential Information only to its employees who need to know such information and certifies that its employees have previously agreed, either as a condition to employment or in order to obtain the Confidential Information, to be bound by terms and conditions substantially similar to those of this Agreement. Recipient will immediately give notice to Discloser of any unauthorized use or disclosure of Discloser’s Confidential Information and will use all commercially reasonable efforts to assist Discloser in remedying any such unauthorized use or disclosure.
11. DISCLAIMER OF WARRANTY
CUSTOMER AGREES THAT CUSTOMER’S ACCESS TO AND USE OF, OR INABILITY TO ACCESS OR USE, THE PIVOTAL TRACKER SERVICE IS AT CUSTOMER’S SOLE RISK. THE PIVOTAL TRACKER SERVICE IS PROVIDED "AS IS" AND “AS AVAILABLE”, AND PIVOTAL AND ITS CONTRACTORS AND LICENSORS, AS APPLICABLE, MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF PROPRIETARY RIGHTS. CUSTOMER ACKNOWLEDGES THAT THE OPERATION OF THE PIVOTAL TRACKER SERVICE MAY NOT BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE OR SOFTWARE. THE PIVOTAL TRACKER SERVICE MAY BE SUBJECT TO LIMITATIONS OR ISSUES INHERENT IN THE USE OF THE INTERNET AND PIVOTAL SHALL NOT BE RESPONSIBLE FOR ANY PROBLEMS OR OTHER DAMAGE RESULTING FROM SUCH LIMITATIONS OR ISSUES. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES OR THE LIMITATION OF CERTAIN DAMAGES, SO SOME OF THE ABOVE DISCLAIMERS, WAIVERS AND LIMITATIONS OF LIABILITY MAY NOT APPLY TO CUSTOMER.
12. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, PIVOTAL AND ITS CONTRACTORS OR LICENSORS, WILL NOT BE LIABLE TO CUSTOMER FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY ACCESS TO OR USE OF THE PIVOTAL TRACKER SERVICE, EVEN IF SUCH PARTIES WERE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE AGGREGATE LIABILITY FOR ANY AND ALL OF CUSTOMER’S CLAIMS AGAINST PIVOTAL AND ITS CONTRACTORS AND LICENSORS ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE VALUE PAID FOR USE OF THE PIVOTAL TRACKER SERVICE DURING THE 12-MONTH PERIOD PRIOR TO THE DATE A CLAIM IS MADE. THE PARTIES AGREE THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES OR THE LIMITATION OF CERTAIN DAMAGES, SO SOME OF THE ABOVE DISCLAIMERS, WAIVERS AND LIMITATIONS OF LIABILITY MAY NOT APPLY TO SUCH CUSTOMERS.
13. INDEMNIFICATION BY CUSTOMER
Customer will defend or settle, at Customer’s expense, any action brought against Pivotal based upon the claim that any modifications Customer makes to the Pivotal Tracker Service or any combination of the Pivotal Tracker Service with Pivotal Tracker Service or other items not approved by Pivotal infringes or violates any third party intellectual property right.
14. GOVERNMENT REGULATIONS
Customer shall not export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the U.S. Government and any country or organization of nations within whose jurisdiction Customer operates or does business.
15. GOVERNING LAW
This Agreement shall be governed by and construed under the laws of the State of California, without regard to that state’s conflict of laws principles. Each party accepts unconditionally the jurisdiction and venue of the state and federal courts located in San Francisco County, California. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
16. INJUNCTIVE RELIEF
Customer understands and agrees that its breach of this Agreement will cause Pivotal irreparable damage for which recovery of money damages would be inadequate, and that Pivotal shall therefore be entitled to obtain timely injunctive relief to protect Pivotal’s rights under this Agreement in addition to any and all remedies available at law.
This Agreement is the entire agreement between the parties on the subject matter hereof. No amendment or modification hereof will be valid or binding upon the parties unless made in writing and signed by the duly authorized representatives of both parties. The relationship of the parties hereunder is that of independent contractors, and this Agreement will not be construed to imply that either party is the agent, employee, or joint venturer of the other. In the event that any provision of this Agreement is held to be unenforceable, this Agreement will continue in full force and effect without said provision and will be interpreted to reflect the original intent of the parties. Customer may not assign this Agreement (by operation of law or otherwise) without the prior written consent of Pivotal and any prohibited assignment will be null and void. This Agreement will be binding upon and will inure to the benefit of the parties permitted successors and/or assignees. Waiver by either party of a breach of any provision of this Agreement or the failure by either party to exercise any right hereunder will not operate or be construed as a waiver of any subsequent breach of that right or as a waiver of any other right.