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GENERAL TERMS AND CONDITIONS
GENERAL TERMS AND CONDITIONS
These General Terms and Conditions and the Quote which accompanies them represent the terms and conditions on which PivIT Global, Inc. (“PivIT”) offers its OneCall Maintenance program (the “Services”) to its customers generally and to the customer named on the Quote (“Customer”) specifically. Customer may accept this offer by signing the Quote or providing its Purchase Order to PivIT, in which case the terms of these General Terms and Conditions shall take precedence over any terms set forth on Customer’s Purchase Order.
1. SERVICES
The services provided by PivIT are set forth in the accompanying Quote.
2. PAYMENT
The fees for Services shall be stated in the Quote. Payment is due in full within thirty (30) days from the date of invoice. PivIT reserves the right to charge a late fee for past due amounts for invoices that are past due over (30) days at the lesser of 18% per annum or the maximum rate permitted by law on all overdue accounts. If Customer fails to make payment when due or defaults on this Agreement in any material way, PivIT may, in its sole and absolute discretion, suspend credit, delay, or stop work and/or pursue all remedies available in law, equity or otherwise under this Agreement.
3. TAXES AND EXPENSES
All stated prices exclude taxes such as sales tax and VAT tax, which, except for taxes based on PivIT income and employment taxes related to PivIT employees, shall be borne by Customer.
4. TERM AND TERMINATION
Term shall be set forth on the Quote and shall become effective on the date written above and can take 4-6 weeks to be fully executed and properly spared. This Agreement may be terminated by either party immediately, if the other party (i) breaches any material term or condition of this Agreement and fails to remedy the breach within ten (10) days after being given written notice thereof; (ii) becomes the subject of any voluntary or involuntary proceeding under the U.S. Bankruptcy Code or state insolvency proceeding and such proceeding is not terminated within sixty (60) days of its commencement, or (iii) ceases to be actively engaged in business. PivIT may terminate this Agreement, with or without cause, by giving Customer at least ten (10) days’ prior written notice, specifying the intended date of termination.
Agreements with an annual value of less than $3000 are understood to be non-cancellable, non-changeable, and non-refundable (unless otherwise noted). Items may be removed from coverage and will be reflected by a prorated credit on-file for future purchases, (unless otherwise noted). Additions or removals will take effect 30 days after the end of the calendar month from when the written notice is provided to PivIT.
5. CONFIDENTIALITY
“Confidential Information” shall mean any information disclosed by either party to the other party, directly or indirectly, in any manner, including in writing, orally or by inspection of tangible objects that: (a) is either designated as “Confidential”, “Proprietary” or some other similar designation; (b) is otherwise reasonably identifiable as the confidential or proprietary information of the disclosing party; (c) is not generally known in the businesses and industries in which the receiving party is directly or indirectly engaged, or in which the receiving party may become engaged during the term of this Agreement; or (d) under the circumstances of disclosure should reasonably be considered as confidential or proprietary information of the disclosing party.
Each party agrees not to use any Confidential Information of the other party for any purpose except in the performance of the Services. Each party agrees not to disclose any Confidential Information of the other party to such party’s employees or to third parties, other than those who need to know such information for the purposes hereof. Each party agrees that prototypes, software, or other tangible objects that embody the other party’s Confidential Information shall not be reverse engineered, disassembled, or decompiled. Each party agrees that it shall take reasonable efforts to protect the secrecy of and avoid disclosure and unauthorized use of any Confidential Information of the other party. Without limiting the foregoing, each party shall take at least those measures that it takes to protect its own most highly confidential information.
The Term “Confidential Information” shall not include information that is:
(a) or becomes publicly known and generally available without violation of this Agreement;
(b) in the possession of the receiving party prior to the disclosure without the obligation to maintain its confidentiality;
(c) independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information;
(d) obtained from third parties without restrictions on disclosure; or,
(e) required by law or legal process to be disclosed by the receiving party, provided that, if permitted, the receiving party gives the disclosing party prompt written notice prior to such disclosure.
All documents and other tangible objects containing or representing Confidential Information which have been disclosed by either party to the other party, and all copies thereof which are in the possession of the receiving party, shall be and remain the property of the disclosing party and shall promptly be returned to the disclosing party upon the request of the disclosing party.
Except as expressly provided herein, nothing contained in this Agreement is intended to grant any rights to either party under any patent, mask work right, copyright, trademark, service mark or other intellectual property right of the other party.
6. DISCLAIMER OF WARRANTIES
EXCEPT AS EXPRESSLY PROVIDED UNDER THIS AGREEMENT, PIVIT PROVIDES THE SERVICES AND DELIVERABLES “AS IS”, WITHOUT WARRANTY OF ANY KIND. PIVIT DISCLAIMS ANY IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
7. INDEMNIFICATION
During the term of this Agreement and for a period of up to 12 months from the date of its termination, PivIT agrees to defend or settle any third-party suit or proceeding brought against Customer that claims an Indemnified Item delivered by PivIT alone and not in combination with any other product constitutes a direct infringement of any U.S. copyright or patent, and subject to the remaining provisions of this Agreement.
8. LIMITATION OF LIABILITY
Either party’s aggregate liability for damages to the other party or any third party, if any, arising from or related to this Agreement, regardless of whether the claim for damages is based in contract, tort, strict liability or otherwise, shall not exceed the amount of fees actually paid by Customer to PivIT pursuant this Agreement for the preceding six (6) months from the date the claim arose, exclusive of expenses. In the event the Services are provided at no charge to Customer, PivIT’ liability shall, in no event, exceed US $5,000.00. This limitation of liability is cumulative and not per-incident (i.e., the existence of two or more claims will not enlarge this limit.)
In no event shall either party be liable for any indirect, special, incidental, punitive or consequential damages, including without limitation, damages for loss of profits or data, whether arising in contract, tort (including negligence) or otherwise, even if such party has been informed of the possibility thereof. In no event shall PivIT be liable to Customer for any damages resulting from or related to any delay in the delivery of Services under this Agreement.
IN NO EVENT SHALL PIVIT BE LIABLE FOR ANY LOSS OR DAMAGES RESULTING FROM THE LOSS OF CUSTOMER DATA.
9. GOVERNING LAW
This Agreement and any claim arising under or relating to this Agreement shall be construed and interpreted according to the internal substantive laws of the State of California.
10. ASSIGNMENT
Customer may not assign this Agreement without PivIT’s prior written consent.
11. ENTIRE AGREEMENT; AMENDMENT
This Agreement is the entire understanding between Customer and PivIT with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, dealings, and negotiations. Any amendment or modification to this Agreement must (a) be in writing signed by authorized signatories of both parties, and (b) reference this Agreement. Notwithstanding the foregoing, in the event PivIT and Customer have entered into a separate agreement for the provision of the Services, the provisions of that agreement shall prevail over these General Terms and Conditions.
12. SEVERABILITY
If one or more terms of this Agreement is held to be illegal or otherwise unenforceable by a court of competent jurisdiction, each such term shall be deemed deleted from this Agreement, but all other terms shall remain in full force and effect.
13. WAIVER
No waiver of any rights will be effective unless assented in writing by the party to be charged, and the waiver of any breach or default will not constitute a waiver of any other right hereunder or any subsequent breach or default.
14. INDEPENDENT CONTRACTOR
In performing Services under this Agreement, PivIT and its employees will be deemed independent contractors to Customer, and not an employee, agent, joint venturer, or partner of Customer and nothing herein shall be construed as creating a relationship other than that of an independent contractor.
15. FORCE MAJEURE
Except for the obligation to pay any monies due and owing, the parties shall be excused from any failure to perform any obligation hereunder to the extent such failure is caused by war, acts of public enemies, strikes or other labor disturbances, fires, floods, acts of God, failures of communication networks, or any causes of like or different kind beyond the reasonable control of the parties.
16. ATTORNEY'S FEES
In the event of any proceeding or lawsuit brought by PivIT or Customer in connection with this Agreement, the prevailing party shall be entitled to receive its costs, expert witness fees and reasonable attorneys’ fees, including costs and fees on appeal, in addition to any relief granted by a court of law.
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Santa Barbara, CA 93101
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