General Terms and Conditions of Sale
1. General Provisions
These terms and conditions together with the documents referred to within it shall form the agreement (“Agreement”) between Pivotal Marketing Ltd (and other trading names ‘Pivotal Web Solutions’ and ‘Website Rentals UK’ of 1 High Street, Brighouse, West Yorkshire HD6 1DE, United Kingdom (“PIVOTAL”) and, the individual or company applying for the provision of services by Pivotal (“Customer”).
PIVOTAL reserves the right to change these terms and conditions (“Conditions”) at any time to comply with changes in regulatory requirements or by reason of changes in the terms of business or working practices of our suppliers or developments in technology upon giving Customer not less than fourteen (14) days notice in advance by post, email and/or publishing the alterations on the PIVOTAL website at www.pivotalweb.co.uk/terms-and-conditions. Notice will be sent to the contact details held by PIVOTAL see Clause 19.
Except where the changes to these Conditions is as a result of legislative or regulatory requirements you may terminate the Agreement without penalty by giving PIVOTAL written notice to reach PIVOTAL no later than seven (7) days prior to the alteration date of the Conditions. If we do not receive such a notice from you prior to that date, and/or if you continue to use the service after sending us a notice, you will be deemed to have accepted the alteration.
1.a – Domain Name provision
For all UK domain name registrations (uk, co.uk, me.uk, org.uk) you are entering into an agreement with Nominet UK, who administer the .uk namespace. Their terms and conditions can be found at http://www.nominet.org.uk/registrants/aboutdomainnames/legal/terms/.
For .EU domain name registrations you are entering into an agreement with EURid, who administer the .eu namespace. Their terms and conditions can be found athttp://www.eurid.eu/files/docs/trm_con_EN.pdf andhttp://www.eurid.eu/files/docs/reg_pol_EN.pdf.
For .CO domain name registrations you are entering into an agreement with MELBOURNE IT. (“MELBOURNE IT LTD”) a registrar accredited by ICANN (Internet Cooperation for Assigned Names and Numbers) to directly register .CO domain names. View their terms and conditions http://www.melbourneit.com.au/policies/cotermcond.php andhttp://www.melbourneit.com.au/policies/mcctldstermcond.php
For .UK.COM domain name registrations, you are entering into an agreement with CentralNic. View their terms and conditions https://www.centralnic.com/support/terms/domains
For all other domain name registrations the Customer should find the conditions appertaining to that domain authorities regulations, and review their terms and conditions before purchasing through Pivotal.
1.b – Hosting Provision
Pivotal Marketing Ltd makes every reasonable effort to maintain the uninterrupted operation of the Pivotal Marketing Ltd Services, subject to regularly scheduled server and network maintenance cycles. However, because many events and circumstances are beyond the control of Pivotal Marketing Ltd, Pivotal Marketing Ltd does not in any way warrant or otherwise guarantee the availability of the Pivotal Marketing Ltd system or servers and is not responsible for any delay or loss of data, lack of connection, slow connection, or any other such issues whether due to the active or passive negligence of Pivotal Marketing Ltd.
PIVOTAL may, at its sole discretion, limit or deny access to its servers, if, in the judgement of Pivotal Marketing Ltd, such limitations or denials of access are required to assure the security of the network, the integrity of the network structure, or to prevent damage to the network, the software or the data stored on the Pivotal Web Solutions servers.
Pivotal Marketing Ltd reserves the right to sub-contract any of the work required to fulfil its obligations hereunder.
Neither party shall be liable for any loss suffered by the other party or be deemed to be in default for any delays or failures in performance hereunder (other than in relation to payment) resulting from acts or causes beyond its reasonable control as detailed in Clause 20.
Any delay or forbearance by either party in enforcing any provisions of this Agreement or any of its rights hereunder shall not be construed as a waiver of such provision or right thereafter to enforce the same.
This Agreement shall be governed by the laws of England and the parties submit to the to the exclusive jurisdiction of the Courts of England and Wales.
In this Agreement, the below terms will be defined as follows:
- Client Control Panel
means the collection of web pages available on the PIVOTAL Website at https://www.Pivotal.com/my_account to allow Customers to administrate their Services;
- Business Hours
means 09:00 – 17:00 GMT on Monday to Thursday, 09:00 – 14:30 on Friday
- Commencement Date
means the date upon which PIVOTAL confirms acceptance of the Customer’s offer to pay for the Service in accordance with this Agreement;
- Contact Information
means the following details about an individual or organisation:
- Your name
- Postal address
- Telephone number(s)
- E-mail address
individuals or organisations identified by their Contact Information as stored by PIVOTAL;
- Correspondence Address
means the PIVOTAL postal as stated on the PIVOTAL Websites contact pagehttps://www.Pivotal.com/contact_us;
- Confidential Information
information which is identified as confidential or proprietary by either party or the nature of which is clearly confidential or proprietary;
- Data Material
Distinct pieces of machine readable information which can be in the form of images, text (on websites and e-mail), software, collection of software codes and scripts, and any other machine readable information used in connection with the Services by the Customer or as supplied by PIVOTAL;
- Domain Privacy Protector
Service that protects Customer Contact Information being displayed in the publicly accessible WHOIS;
the fees (including any VAT) due for the provision of the Services as calculated in accordance with the Price List;
- Inappropriate Material
material that under the laws of any jurisdiction where the material can be accessed is any of the following: – unlawful, threatening, abusive, harmful, malicious, obscene, pornographic, is deemed Unacceptable Adult Material, profane, libellous, defamatory, breaches the rights (including without limit IPRs) of any third party, constitutes or encourages a criminal offence or contains a virus, worm, trojan horse or other harmful code;
- Initial Term
is the period stated in the first Order for the Service starting on the Commencement Date;
means generally accepted standards for use of the Internet such as but not limited to sending bulk unsolicited Email, spamvertising, mail bombing, misrepresenting the holding of third party authorisation and impersonating another person;
discounts and/or promotions that apply to Services offered by PIVOTAL that may affect the Fees and/or the features for the Service;
means the Customers application for the Services through an Order Form or by adding items to their shopping basket and proceeding to the checkout phase. Completion by Customer indicates which Service it requires and its agreement to these terms and conditions governing such provision;
- Order Confirmation
the Order confirmation notices submitted by PIVOTAL to the Customer by email or otherwise in writing for the provision of the Services, in response to the Customer’s Order or request;
PIVOTAL and/or the Customer;
- Price List
the price for each Service as available on the PIVOTAL Website;
- Renewal Term
successive terms after the Initial Term of the Service for the period stated in the subsequent Order for the Service starting from the end of the Initial Term;
the computer server equipment operated by PIVOTAL in connection with the provision of the Services;
the services identified in an Order to be provided by PIVOTAL to the Customer including without limitation Hosting Services, Servers, details of the requested Data Transfer, Hardware, Storage Space and Software pursuant to these terms and conditions and any others specified by PIVOTAL on such Order;
the collection of hardware and software configured together that are interacting or interdependent;
means Uniform Domain-Name Dispute-Resolution Policyhttp://www.icann.org/en/udrp/udrp.htm
- Unacceptable Adult Material
includes any nudity, erotic images, sexually oriented material, or sexual themes;
website on the World Wide Web accessible over the HTTP protocol;
a publicly accessible database that stores the registered assignees of domain names
- WHOIS Information
Contact Information that is displayed in the publicly accessible WHOIS
- Working Day
means a day other than a Saturday or Sunday on which the Clearing Banks in the United Kingdom are open to the public for the transaction of business;
The Agreement forms the entire understanding of the parties in respect of the matters dealt within it and supersedes all previous agreements, understandings and negotiations between the parties.
The headings in this Agreement are for convenience only and shall not affect the interpretation of this Agreement.
In this Agreement words denoting the singular include the plural and vice versa and words denoting any gender include all genders.
The words “include”, “includes”, “including” and “included” will be construed without limitation unless inconsistent with the context
References in these Conditions to clauses means clauses of these Conditions.
References in these Conditions to the provisions of statutes or statutory instruments are deemed to include those provisions as amended or substituted.
4. Provision of Services
- The Services are described or referred to on the Order Confirmation. PIVOTAL agrees to supply Services to the Customer when the Customer places an Order for Services with PIVOTAL and makes payment for such Services on the Website.
- PIVOTAL shall supply the Services to the Customer in accordance with this Agreement, as soon as it is reasonably practicable and with all reasonable endeavors to do so in a timely manner. PIVOTAL shall not be liable to the Customer should it fail to meet any time scale expectation of the Customer.
- PIVOTAL shall inform the Customer of any delays to the Services as soon as it is reasonably practicable and shall provide the Customer with the possibility of a full refund of any Fees already paid by the Customer for Services rendered where it is unable to deliver the Services within thirty (30) days from the Commencement Date.
- PIVOTAL reserves the right at any time and from time to time to amend, improve or correct the Services (or any part thereof) provided that such modification does not materially affect them. PIVOTAL shall endeavor to give the Customer reasonable notice of such modifications but this may not always be possible and PIVOTAL shall not be liable to the Customer or to any third party for any such modification or any failure to give such notice.
- PIVOTAL may at its sole discretion suspend the provision of the whole or any part of the Services (temporarily or permanently) without notice or liability in order to repair, maintain or improve the Service or infrastructure, or in an emergency, or as the result legislative, regulatory or other changes. PIVOTAL shall endeavor to give the Customer reasonable notice of such alteration taking effect, but cannot always guarantee to do so.
5. Completion of Website Services
- PIVOTAL reserve that right NOT to start the website development phase until design artwork has been authorised. The design artwork will not be started until the deposit payment has been received into the PIVOTAL bank account (the PIVOTAL bank details are available on the Invoice at all times).
- Once the website development has completed the customer has the right to make up to 3 content amendments within 30 days of the development completion notice sent via email by PIVOTAL. The customer has the right NOT to allow the website to be put live but any outstanding payment MUST be paid at this time. Following the 30 day period for amendments, PIVOTAL have the right to charge additional development time at £100 per hour for any changes or amendments to the website.
- The Initial Term and any subsequent Renewal Term of the Agreement shall begin on the date that PIVOTAL generates an Order Confirmation e-mail message to Customer announcing the activation or continuation of the Customer’s Service (the “Commencement Date”) and shall continue for the period stated in the Order.
- At least sixty (60) days prior to the expiry of a Service, PIVOTAL will remind the Customer of the impending expiry by email to the then current address specified on the Customer default account pursuant to Clause 19. PIVOTAL will further remind the Customer at thirty (30) days, fourteen (14) days and seven (7) days of the impending Service expiry. The Service will lapse unless payment is received to extend the term of the Service, subject to Clauses 8 and 11. PIVOTAL will not be liable for non-renewal of the Service.
- Upon expiration of the Initial Term, this Agreement shall automatically renew for successive terms of the same length as the Initial Term (“Renewal Term”) unless PIVOTAL or Customer provides the other with written notice of non-renewal at least fourteen (14) days prior to the expiration of the Initial Term or the then current Renewal Term or disables auto renew via the Customer Account Control Panel, as applicable.
- The Agreement (and any subscription for Services) may be terminated early by the Customer or PIVOTAL pursuant to Clauses 11 and 12 of these Conditions.
- The customer acknowledges and agrees that your right and interest in a domain name ceases upon its expiration and that any expired domain name may be made available for registration by a third party.
- All Fees quoted are subject to UK VAT at the rate of 20% unless otherwise stated.
- The Customer agrees to make payment for the Services by debit or credit card payment at the time of making the order or renewal.
- Fees are payable as specified in the specific Conditions relating to the Service in question and are due on an ongoing basis until this Agreement is terminated.
- The monthly or yearly Fees payable to PIVOTAL will be paid in advance and will not be refundable in whole or part if the Agreement or relevant part is terminated during the period to which the payment relates.
- Additional Fees will become payable to PIVOTAL if the Customer exceeds agreed or stipulated bandwidth use levels as specified in the specific Conditions relating to the Service in question.
- The Customer acknowledges that the provision of the Services is conditional on PIVOTAL receiving payment of the Fees in full. In the event of non payment of Fees or suspected fraudulent activity in relation to payment of Fees by the Customer, PIVOTAL will:
- be entitled to charge interest on a daily basis on the overdue amount and on outstanding interest from the date of such failure until payment (until judgement) at an annual rate 4% above the base rate for the time being in force of Barclays Bank plc.
- suspend the Service until payment is made in full, and/or
- suspend administration of the Service and/or account
- terminate the Agreement in whole or in part and cease providing the Service
- Non-delivery or non-performance of services by any third party other than PIVOTAL’s sub-contractors shall not give Customer any right to delay any payment to PIVOTAL or to make any claim whatsoever against PIVOTAL.
- All prices may be increased subject to the Retail Prices Index (RPI) as listed on the office of national statistics and/or increases in the wholesale price of domain names as defined by the individual domain registries. Customers will be given thirty (30) days notice by post, email and/or publishing the alterations on the PIVOTAL website at www.Pivotal.com/terms_and_conditions
- Where the Customer authorises payment of any of the Fees by credit and or debit card then PIVOTAL may deduct other amounts becoming payable to it under the Agreement from that credit or debit card without obtaining additional authorisation from the Customer. For the avoidance of all doubt the Customer credit or debit card details will be stored on PIVOTAL’s systems for the duration of the Agreement unless explicitly removed by the Customer.
- Customers who have set user pricing will receive discounts on either the percentage off discount of the non user pricing product price or the difference of the discount between the non user pricing product price and their set user pricing. The highest discount value will be applied in this case.
- Customers that exceed the data transfer amount allocated as part of the Service will be charged at GBP 0.02 per MB
- Pre-Orders cannot be cancelled, are non-transferrable and cannot be substituted, regardless of any financial consideration that PIVOTAL may have taken in deposit for a Pre-Order.
- A refund will be made for unsuccessful Pre-Order items except for non-refundable application Fees.
- PIVOTAL operates a default auto-renew policy on all new Services, designed to ensure continuity of service.
- Customers can opt out from auto-renew and manage their auto-renew settings via their Account Control Panel.
- All Services automatically renewed shall be for the same period as their initial or renewal term. These periods are configurable for most Services in the Account Control Panel.
- Customers with active auto-renew for Services will be sent notification of auto-renew (28) days prior to Service expiry by email to the then current address specified on the Customer default account.
- PIVOTAL shall charge the credit or debit cards held in the Customer’s account for auto-renew (21) days prior to the Service expiry. In the event the payment fails, we will notify the Customer via email to the then current address specified on the Customer default account. It will be the Customers responsibility to make alternative payment arrangements for the renewal of Services.
- It is the Customer’s responsibility to ensure that they have valid up-to-date credit or debit card details assigned to their account to use the auto-renew facility.
- The Customer agrees that they are solely responsible for ensuring that their Services are renewed and that PIVOTAL shall have no liability to the Customer or any Third Party in connection with the renewal, including, but not limited to, any failure in the renewal process.
10. Monthly Services
- All monthly Services will automatically be set to Auto Renew. The Customer is responsible for canceling the Service if it is no longer required.
- Unless otherwise stated, promotion codes will apply to new Orders only.
- Refunds of a promotion code that discounts the Fee for an Order cannot be offered retrospectively, Customers must use the promotion code when purchasing an applicable product during checkout.
- Following the conclusion of a promotional offer and/or code, new and or renewals of the Services will be charged at the standard Fee and this Fee is subject to change.
- Unless otherwise stated, promotion codes can be used multiple times per Customer account.
- Only one promotion code can be used per Order.
- PIVOTAL reserves the right to end Offers, extend Offers and or amend the terms and conditions of Offers at any time without the prior notice or consent of the Customer.
- Where more than one type of discount could apply to the Order, PIVOTAL will apply the discount that results in the greatest saving, this applies to all promotions and bespoke Customer pricing.
- Reasonable usage applies
12. Termination and Suspension
- This Agreement can be terminated by PIVOTAL upon notice in writing to Customer having immediate effect if:
- Customer is in breach of any of its obligations under this Agreement, including the AUP and/or Customer has had a Service suspended 3 times within a 6 month period;
- if the Customer fails to pay to PIVOTAL any sum due under the Agreement on the due date for payment;
- the supply of the service and/or additional services to the Customer may (in PIVOTAL’s reasonable opinion) expose us to the risk of litigation or other civil or criminal proceedings;
- becomes the subject of a voluntary arrangement under section 1 of the Insolvency Act 1986;
- is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
- has a receiver, manager, administrator or administrative receiver appointed over all or any parts of its undertaking, assets or income;
- has ceased or threatened to cease to trade.
- In the event that any of the circumstances identified in Clause 11.1 arises, PIVOTAL shall be entitled to retain any sums paid to it by Customer hereunder and recover any sums due to it pursuant hereto whether invoiced or not at the date of termination.
- The Agreement can be terminated by the Customer:
- at the renewal date by not renewing the Service;
- with immediate effect on giving us written notice of termination, if we are in material breach of any obligation under the Agreement and, where we can remedy that breach, have failed to do so within thirty (30) days of receiving notice from you specifying the breach and requiring its remedy; and/or
- on a change to the terms and conditions, by serving PIVOTAL notice in accordance with Clause 19.
- The Customer acknowledges that, termination of the Agreement for any reason will result in PIVOTAL ceasing to provide the applicable Services, with all the consequences that flow from such cessation, including (but not limited to), deletion of data e.g. hosting account(s) and mailboxes.
- In the event of termination of the Agreement by the Customer part way through the Initial Period, the Customer remains obliged to pay for Services for the remainder of that period.
- PIVOTAL may at its sole discretion suspend the provision of the whole or any part of the Services (temporarily or permanently)
without notice or liability if:
- the Customer fails to pay any Fees or any other sums owing to PIVOTAL by the Customer when they fall due;
- if an event occurs and PIVOTAL determines in its sole discretion that suspension is necessary to protect all and any internet solutions provided by PIVOTAL from time to time;
- failure or deficiencies in the Customer System referring but not limited to hardware, server corruption and security breaches;
- failure by the Customer to adhere to any of the provisions outlined in the AUP.
- Where PIVOTAL suspends provision of the Services in accordance with Clause 11.6, it will only be obliged to reactivate the Service during Business Hours and once the Customer has paid all relevant outstanding Fees
- Customers that have purchased the Services as Consumers, for the purposes of the Consumer Protection (Distance Selling) Regulations 2000, have the right to cancel the Agreement within seven (7) days at no additional cost from either:
- the date the contract is formed;
- the date that the Customer receives confirmation that the contract is formed from PIVOTAL or whichever is the later.
For the purposes of this clause, the date the contract is formed shall be the date that the Customer presses the ‘Make Payment’ button thereby granting consent that the Service commences.
- The Customer can exercise their right to cancel by contacting PIVOTAL in writing in accordance with Clause 19.
- The Customer will no longer have the right detailed in Clause 12.1 once PIVOTAL has commenced the Service with the Customer’s consent. For the purposes of this clause the Customer’s consent will be deemed to be given upon the Customer pressing the ‘Make Payment’ button.
- If the Customer does not wish to waive these rights, then PIVOTAL will be unable to commence the Service until the end of the relevant cooling off period which is seven (7) days.
- PIVOTAL will not refund to the Customer the cost of registering or renewing a domain name after the Customer has consented to PIVOTAL commencing the Service and the domain name has already been registered or renewed with the appropriate registrar.
14. Customer Authorisation and Obligations
- The Customer agrees that it will:
- ensure that all its communication details which are provided to PIVOTAL are at all times true, current, accurate and complete and the Customer shall promptly notify PIVOTAL of any such alterations thereto from time to time and the Customer acknowledges that PIVOTAL shall not be liable for any costs, damages or loss which the Customer may suffer or incur as a result of failure to notify such changes to PIVOTAL;
- obtain the consent of individuals whose personal data are to be held on a domain name register or are otherwise provided to PIVOTAL;
- ensure that it has all necessary consents, permissions and licences to make use of the Services including without limit registration under the Data Protection Act 1998 and any applicable licence requirements under the Communications Act 2003;
- immediately notify PIVOTAL if it becomes aware of any unauthorised use of all or any of the Services;
- not use the Services or allow them to be used for any unlawful purpose or for the publication, linking to, issue or display of any Inappropriate Material whether under English law or regulation, the laws or regulations of the Customer country or any other place where the results of such purpose or such material can be accessed;
- not use the Services or allow them to be used for the publication, linking to, issue or display of any material which in the absolute discretion of PIVOTAL may harm PIVOTAL or any of its Customers or bring PIVOTAL into disrepute or may call into question any action taken by PIVOTAL on the Customer’s behalf;
- not use the Services or allow them to be used in breach of good Netiquette practices or use any service provided by any third party (including without limit an Internet web site and/or Email) for the publication, linking to, issue or display of any material which refers to an Internet web site hosted by PIVOTAL or any other services offered by PIVOTAL from time to time;
- ensure that all material on any web site operated by the Customer from time to time or communicated through such site is checked for viruses and other harmful code;
- ensure that all passwords are at all times kept confidential, used properly and not disclosed to unauthorised people and if the Customer has any reason to believe that any password has become known to someone not authorised to use it or if any password is being or is likely to be used in an unauthorised way or of any other breach of security then the Customer shall inform PIVOTAL immediately;
- be entirely liable for all activities conducted and charges incurred under its passwords whether authorised by it or not and the Customer acknowledges that PIVOTAL shall not be liable for any loss of confidentiality or for any damages arising from the Customer to comply with these Conditions;
- not use the Services in a manner which infringes a third party’s copyright or other intellectual property rights of whatsoever nature;
- not use the Services in any way that leads to a risk of or causes an excessive load on the server/network provided by PIVOTAL in connection with the Services;
- comply fully with PIVOTAL’s AUP;
- be responsible for keeping a frequent and secure offsite back-up copy of all Customer Data Material used with all Services, in addition to any back-up services provided by PIVOTAL;
- allow PIVOTAL access to the Customer’s Data Material to check for any infringements of the Customer’s obligations under this Agreement, and, when the situation necessitates, to remove or disable any such infringements from time to time;
- The Customer acknowledges and accepts that to enable PIVOTAL to properly provide the Services it must co-operate with PIVOTAL as required by PIVOTAL.
- The Customer acknowledges that in order to make proper use of the Services it should have a basic knowledge of how the Internet functions and what types of use are and are not acceptable. The Customer acknowledges that PIVOTAL shall have no obligation to:
- manipulate any material which the Customer wishes to and/or does post on any web site it operates or any communication which it issues or sends in connection with any of the Services;
- validate or vet such material for usability, legality, content or correctness.
- The Customer authorises the storing of Customer credit or debit card details by PIVOTAL for use in subsequent orders.
- The Customer accepts and acknowledges that PIVOTAL will provide Customer data to third parties where we have an obligation to do so in order to provide the Service and/or for the purpose of gathering feedback to help improve the Service and to analyse usage trends.
- The rights and obligations of Customer under this Agreement are personal to Customer and Customer undertakes that it shall not, without the prior written consent of PIVOTAL, assign, lease, charge, sub-license, or otherwise transfer such rights and obligations in whole or in part.
- If in PIVOTAL’s opinion, the Customer is in breach of the provisions provided in this Clause, then PIVOTAL may by written notice suspend provision of the Service and/or terminate the Agreement.
15. PIVOTAL Warranties and Liability
- PIVOTAL makes no warranties or representations that any Service will be uninterrupted or error-free. Customer accepts all Services provided hereunder “as is” and “as available” without warranty of any kind.
- All implied conditions, warranties and terms (whether express or implied by statute, common law, custom or otherwise) – excluding those relating to the exercise of reasonable care and skill, fitness for purpose and satisfactory quality (where applicable) – are hereby excluded in relation to each of the Services to be provided hereunder to the fullest extent permitted by law.
- PIVOTAL warrants that it will provide the Services with reasonable care and skill. PIVOTAL will not be liable for a breach of such warranty unless the Customer notifies PIVOTAL in writing of such failure within (14) days of the Customer becoming aware of the failure.
- PIVOTAL shall not be liable for any services or products to be supplied by any third party.
- PIVOTAL shall not be liable for any loss or damage of whatsoever nature suffered by Customer arising out of or in connection with any breach of this Agreement by Customer or any act, misrepresentation, error or omission made by or on behalf of Customer.
- PIVOTAL disclaims all liabilities in connection with the following:
- loss of material uploaded;
- incompatibility of the site with any of the Customer’s equipment, software or telecommunications links;
- technical problems including errors or interruptions of the site;
- unsuitability, unreliability or inaccuracy of the site;
- loss of any emails sent to mailboxes of any configuration or sent from email accounts related to Services provided by PIVOTAL.
- PIVOTAL is not responsible for any delay, malfunction, non performance and/or other degradation of performance of any of the Services caused by or resulting from any alteration, modification and/or amendments due to changes and specifications requested or implemented by the Customer whether or not beyond those already supplied.
- Subject to Clauses 14.9 and 14.10 below, no matter how many claims are made and whatever the basis of such claims, PIVOTAL’s maximum aggregate liability to Customer under or in connection with this Agreement in respect of any direct loss (or any other loss to the extent that such loss is not excluded by Clauses 14.1 – 14.7 above, or otherwise) whether such claim arises in contract or in tort shall not exceed a sum equal to twice the Fees paid by Customer pursuant hereto.
- None of the clauses herein shall apply so as to restrict liability for death or personal injury resulting from the negligence of PIVOTAL, its employees or its sub-contractors.
- Your statutory rights relating to the use of reasonable care and skill in the provision of the service are not affected by the terms and conditions of the Agreement.
- Each of the parties agrees (subject to Clauses 15.2 and 15.3) not to:
- disclose any Confidential Information received from the other party; or
- make any use of any such Confidential Information other than for the purposes of performance of this Agreement.
- Each party may disclose Confidential Information received from the other to its responsible employees, consultants, sub-contractors or suppliers who need to receive the information in the course of performance of this Agreement.
- The confidentiality obligations under Clause 15.1 shall not apply to any information which:
- is or subsequently becomes available to the general public other than through a breach by the receiving party; or
- is already known to the receiving party before disclosure by the disclosing party;
- is developed through the independent efforts of the receiving party; or
- the receiving party rightfully receives from a third party without restriction as to use.
- Customer hereby agrees fully to indemnify, keep indemnified and hold harmless PIVOTAL, its officers, employees, agents, sub-contractors and affiliated companies from and against any and all costs, claims, losses, damages and expenses (including, but not limited to, legal fees) sustained or incurred by PIVOTAL or its any of its officers, employees, agents, sub-contractors or affiliated companies directly or indirectly and in any jurisdiction as a result of:
- any breach of any of the warranties given by Customer in this Agreement;
- otherwise howsoever arising out of the provision by PIVOTAL of any Service hereunder unless on account of breach of contract or negligence by PIVOTAL; and/or
- any breach by Customer of any of its obligations in this Agreement.
18. Intellectual Property Rights
- The Customer acknowledges and agrees that it will not own or acquire ownership of any Intellectual Property Rights in or relating to the Services or created in performing the Services and that it will have no rights in or to the Services other than the rights expressly granted by the Agreement.
- No Intellectual Property Rights created or acquired by PIVOTAL will transfer or be assigned to the Customer unless PIVOTAL and the Client have signed a written assignment document to that effect.
- The Customer shall address any complaints concerning the provision of the Services to PIVOTAL in writing, by post, fax or email, in accordance with Clause 19. In addition, the Customer may email a complaint to PIVOTAL using the online email ticketing system available at https://www.Pivotal.com/contact_us
- Any notice to be given or made by either Party under or in connection with this Agreement must be in writing and given or made to the Customer at its address stated on the Customer Order and/or the address specified on the Customer default account, and to PIVOTAL at its Correspondence Address or to such other address as either Party may from time to time notify to each other.
- Every notice, if so addressed as indicated in Clause 19.1 above, is deemed to have been duly given or made, if delivered by hand, upon delivery at the address of the relevant Party, if sent by pre-paid first-class post, (2) calendar days after the date of posting and if transmitted by facsimile, at the time of transmission (provided a confirmatory letter is sent by pre-paid first-class post) provided that, where, in accordance with the above provisions, any notice would otherwise be deemed to be given or made on a day which is not a Business Day or after 4.00 p.m. on a Business Day, such notice shall be deemed to be given or made at 9.00 a.m. on the next Business Day.
- The Parties may additionally serve notice on each other by email to:
- the Customer’s email address as defined on the Customer’s default contact details; or
- in the case of PIVOTAL, to the Correspondence Address.
In the event of notice by email transmission, emails shall be deemed sent once transmitted from the relevant email server.
21. Force Majeure
- If PIVOTAL is prevented or delayed in or from performing any of its obligations under these Conditions or the Agreement due to circumstances beyond its control such as but not limited to governmental acts, war, riots, strikes or trade disputes (including by and with our own employees), technical failure, general availability of the Internet, power failure, communications failure, weather, flood, fire or explosion, natural or local emergency PIVOTAL shall not be liable for this.
E-mail: [email protected]