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

2. SERVICES; CUSTOMER PLANS AND ACCOUNTS; CUSTOMER DATA

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:

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.

5. RESTRICTIONS

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

8. TERM, TERMINATION AND SURVIVAL

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. CONFIDENTIALITY

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.

17. MISCELLANEOUS

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.