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PivIT Global, Inc. Terms and Conditions

GENERAL TERMS AND CONDITIONS

 

  1. Purpose. The provisions contained in these General Terms and Conditions set forth the terms and conditions applicable to all sales of products (“Products”) by PivIT Global, Inc. (“Seller”) to its customers (“Buyer”). These Terms and Conditions, together with any quotes and purchase orders, are collectively referred to herein as the Contract Documents. In the event of any inconsistencies between these Terms and Conditions and the terms of any written quote provided by Seller, the terms of the written quote shall be controlling. In the event of any inconsistencies between these Terms and Conditions and the terms of any purchase order provided by Buyer, the terms of these Terms and Conditions shall be controlling.

 

  1. Payment. Terms of payment shall be net thirty (30) days. All invoices which are not paid within thirty (30) days of the date of invoicing, shall bear interest at the rate of eighteen (18) percent per annum, simple interest.

 

  1. Purchase Money Security Interest. Seller retains a purchase money security interest in each Product Buyer purchases until the Contract Price is paid in full. Buyer appoints Seller as Buyer’s agent to sign and file a financing statement to perfect Seller’s security interest.

 

  1. Delivery. Seller shall deliver all items to Buyer at Buyer’s expense and risk of loss. Seller shall deliver the products to the Buyer FOB Santa Barbara, CA, or to such other point as is named in the Contract Documents by Seller.

 

  1. Buyer shall inspect the items upon arrival and shall, within seven (7) calendar days thereof, give written notice to Seller specifying any shortages or non‐conforming Product. Failure to do so will constitute a waiver of non‐conforming delivery and acceptance of the Product(s) and the delivery as is.

 

  1. Buyer shall install and use the Product(s) in full compliance with all applicable laws, regulations, and building codes, and with all applicable Seller instructions and specifications. Seller makes no warranty of any kind, express or implied, including the implied warranty of merchantability or the implied warranty of fitness for a particular purpose, regarding the Products, except as set forth in this Agreement.

 

  1. Buyer is solely responsible for (i) determining that the product is suitable for the contemplated purpose and (ii) obtaining any required engineering services or architectural services relating to the project at Buyer’s own expense.

 

  1. Buyer acknowledges and agrees that (i) software installed on used equipment does not come with a manufacturer’s license, and (ii) it shall be Buyer’s responsibility to contact the manufacturer to determine the licensing requirements applicable to any used equipment purchased from Seller.

 

  1. Seller shall not be liable to Buyer for the results of the use of Product(s) purchased, whether used singly or in combination with other materials or products, unless the Products are installed and used in full compliance with all applicable laws, regulations, and building codes and with all applicable Seller instructions and specifications.

 

  1. Seller shall have no liability for any third-party claim arising out of or in any way related to the negligence or willful act or omission of Buyer or that of its employees, agents, or subcontractors. Buyer will defend, hold harmless, and indemnify Seller from any and all such claims, whether suit is filed or not, regardless of whether such claim also includes any allegation based upon Seller’s intentional or negligent act or omission. Buyer will pay Seller’s reasonable attorney’s fees incurred in investigating, responding to, defending, and otherwise dealing with any such claim, upon demand by Seller. If Seller, in Seller’s sole and unreviewable discretion, settles such claim, Buyer shall pay Seller, in addition to Seller’s reasonable attorney’s fees, an amount equal to the reasonable value of Seller’s settlement.

 

SELLER IS NOT LIABLE FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR FOR LOSS OF PRODUCTS, REVENUE OR DATA, WHETHER IN AN ACTION IN CONTRACT, TORT, PRODUCT LIABILITY, BY STATUTE, OR OTHERWISE EVEN IF ADVISED OF THE POSSIBILITY OF THOSE DAMAGES AND EVEN IF THE DAMAGES OR LOSS ARE CAUSED IN WHOLE OR IN PART BY SELLER’S NEGLIGENCE. SELLER WILL NOT BE LIABLE FOR DIRECT OR INDIRECT DAMAGES CAUSED BY LATE DELIVERY, PRODUCT DEFECT, OR ANY OTHER CAUSE. SELLER HAS SET PRICES FOR ITS PRODUCTS BASED ON THE ALLOCATION OF RISKS SET OUT IN THIS AGREEMENT.

 

  1. Seller liability with respect to any transaction with Buyer for the purchase of Products will not exceed that amount that Buyer has paid Seller.

 

  1. Warranty and Limitation of Remedies.

 

  1. Seller warrants that Product(s) will be free from defects in material and workmanship and will conform to Seller’s specifications. This warranty begins on delivery and continues for ninety (90) days. If Buyer notifies Seller during the warranty period that a Product does not comply with this warranty, Seller will, at Seller’s sole option, repair or replace the Product at no charge.

 

  1. Seller and its direct and indirect suppliers/vendors, shall have no other or further liability by reason of the manufacture or sale of any Product sold hereunder or by reason of their use, whether on the basis of breach of warranty, strict liability, negligence or otherwise. In no event shall Seller or its direct or indirect suppliers/vendors be liable for general, special, consequential, or incidental damages relating to bodily injury, property damage, or economic loss (including without limitation damages for loss of use or loss of profits).

 

  1. BUYER ACCEPTS RESPONSIBILITY TO VERIFY THAT THE PRODUCTS BUYER ACQUIRES WILL MEET BUYER’S SPECIFIC REQUIREMENTS. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, SELLER DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR OTHERWISE, AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. SELLER DOES NOT WARRANT THAT PRODUCTS WILL OPERATE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFICIENCIES, ERRORS, DEFECTS OR NONCONFROMITIES WILL BE CORRECTED. SELLER HAS NO WARRANTY OBLIGATION FOR THIRD PARTY PRODUCTS.

 

  1. Buyer’s sole remedy with respect to any Product is Seller’s repair or replacement of Product(s) or, at Seller’s option, refund of sums paid.

 

  1. Buyer’s rights and remedies set forth herein or in any subsequent writing are limited as set forth herein, notwithstanding anything to the contrary.

 

  1. Neither Buyer nor Seller may bring a claim or action arising out of or related to the purchase of any Product, including any claim of fraud or misrepresentation, more than two (2) years after the cause of action accrues.

 

  1. Force Majeure. Seller shall not be liable for delay or non‐performance of the contract or any part thereof, resulting directly or indirectly from:

 

  1. Earthquakes;
  2. Epidemics;
  3. Act of any governmental authority, domestic or foreign, including but not limited to war, declared or undeclared, priorities, quarantines, embargoes, licensing controls or production or distribution restrictions;
  4. Accidents and disruptions including but not limited to fires, explosions, breakdowns of essential machinery or equipment and power shortages;
  5. Transportation or storage delays, accidents or shortages;
  6. Labor difficulties including but not limited to strikes, slowdowns, lockouts, sabotage and labor shortages;
  7. Failure or delay in its source of supply;
  8. Acts or omissions of Buyer; or,
  9. Any cause beyond its reasonable control whether similar or dissimilar to those above mentioned.

 

Dates of delivery shall be extended for a period equal to the time lost by reason of any cause set forth above even though such cause may occur after Seller’s performance has been delayed for other causes.

 

  1. BECAUSE OF INTERNATIONAL PATENT AND TRADEMARK LAWS, BUYER MAY NOT EXPORT PRODUCTS WITHOUT SELLER’S PRIOR WRITTEN CONSENT AND THE APPROPRIATE APPROVALS FROM THE U.S. AND FOREIGN GOVERNMENT(S).

 

  1. No Waiver. The failure of either Buyer or Seller to insist upon the performance of any of the terms and conditions of the Contract Documents, or the waiver of any breach of any of the terms and conditions of the Contract Documents, shall not be construed as subsequently waiving any such terms and conditions, but the same shall continue and remain in full force and effect as if no such forbearance or waiver had occurred.

 

  1. Governing Law. The parties expressly agree that any dispute regarding the Contract Documents shall be governed by, interpreted under and enforced in accordance with the laws of the State of California. In the event of any dispute, the parties shall be subject to the jurisdiction of the courts of the State of California, regardless of their place of residence, and in any action arising in connection with this Agreement, venue shall be in the County of Santa Barbara, State of California.

 

  1. Entire Agreement. The Contract Documents shall constitute the entire agreement between the parties and any prior understanding or representation of any kind preceding the date of the Contract Documents shall not be binding upon either party except to the extent incorporated in the Contract Documents.

 

  1. Modification. Any modification of Contract Documents or additional obligation assumed by either party in connection with the Contract Documents shall be binding only if placed in writing and signed by each party or an authorized representative of each party.

 

  1. Counterparts. The Contract Documents may be signed in counterparts, and faxed or scanned and e-mailed copies of those counterparts will have the same binding legal effect as if the parties had signed one original document.

 

PivIT OneCall Terms & 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.

  1. 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.

  1. 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.   

  1. TERM AND TERMINATION

The Term shall be as set forth on the Quote. 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.

  1. 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:

  • or becomes publicly known and generally available without violation of this Agreement;
  • in the possession of the receiving party prior to the disclosure without the obligation to maintain its confidentiality;
  • independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information;
  • obtained from third parties without restrictions on disclosure; or,
  • 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.

  1. 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.

  1. 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.

  1. 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 or not 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.

  1. 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.

  1. Assignment

Customer may not assign this Agreement without PivIT’s prior written consent.

  1. 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.

  1. 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.

  1. 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.

  1. 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. 

  1. 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. 

  1. 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.

Aks

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