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This Standard Terms and Conditions of Sale Agreement (the “Agreement”) is by and between Pivot Technology Solutions, Ltd., a Delaware corporation, and its parent, subsidiaries, and affiliates (collectively, “Company”) and the individual and/or entity (“Customer”) receiving the Products or Services (as defined below), each a “Party” and collectively the “Parties.” This Agreement is effective as of the first date that Customer authorizes an Order for any Product or Service (as defined below) from the Customer (the “Effective Date”).

By authorizing an Order for Products and/or Services in accordance with Section 3.1  and in consideration of the mutual promises of the Parties set forth herein, Customer hereby agrees to purchase the Products and/or Services from Company in accordance with the following terms.

1.  Scope of Agreement

1.1 Generally. This Agreement sets forth the terms and conditions applicable to any procurement by Customer of any hardware, software, or cloud-based subscription services (collectively, “Product or Products”) and/ or various maintenance, support and related services (collectively, the “Services”) from Company.

1.2 Relationship. Company is an independent entity providing Product and Services to Customer and no employment relationship is created by this Agreement.  Company shall, at all times, retain its independent status and use its own discretion in providing Product and Services, subject to general direction by Customer and to the specific terms and conditions of this Agreement.

1.3 Nonexclusive Agreement. This is not an exclusive agreement.  Customer is free to engage others to procure Product or Services the same as or similar to Company’s.  Company is free to and is encouraged to, advertise and sell Product and Services to others.

2.  Term and Termination.

2.1 Term of Agreement. The term of this Agreement will commence on the Effective Date and shall remain in effect until terminated by either Party with thirty (30) days prior written notice.

2.2 Effect of Termination. Upon any termination of this Agreement, each Party shall return the disclosing Party’s Confidential Information and will be released from all obligations and liabilities to the other occurring or arising after the date of such termination, except as expressly provided below.  While termination will not relieve Company or Customer from any liability arising from any breach of this Agreement, neither Party will be liable to the other for damages of any kind solely as a result of terminating this Agreement in accordance with its terms.  Termination of this Agreement will be without prejudice to any other right or remedy of either Party.

3.  Product Sales

3.1 Orders. Company shall issue Customer a quote for the Product and Services (a “Sales Quote”), which shall be deemed accepted by Customer and thereby create an order (“Order”) when the Customer issues a purchase order, signed quote, or equivalent documentation authorizing a sale (“PO”) authorizing sale.

3.2 Invoicing and Payments. As full consideration for the purchase of Product or Services under this Agreement, Customer shall pay Company the amount specified in the Sales Quote and duly reflected on the Customer’s PO.  In the event the purchase price reflected on the PO is less than the price listed on the Sales Quote, the Sales Quote price shall apply.  Unless the Sales Quote states otherwise, payment will be due net thirty (30) days from the date of invoice.  All unpaid amounts may accrue interest at a rate of 1.5% per month or the highest rate allowable by law, whichever is greater.  If Customer disputes an invoice (a “Billing Dispute”), Customer will notify the Company in writing no later than thirty (30) days following the date of such invoice of the nature of the Billing Dispute.  The Parties will make commercially reasonable efforts to resolve a Billing Dispute within a reasonable amount of time.

3.3 Taxes. All prices are based on U.S. dollars unless otherwise specifically agreed to in writing by both parties. Customer shall be solely responsible for the payment of any applicable taxes, including any interest and penalties, in connection with this Agreement, including but not limited to any sales, use, excise, value-added taxes (“VAT”), consumption, and other taxes and duties assessed on the Product and Services. All Product and Services under this Agreement are deemed subject to applicable taxes unless Customer provides the Company with a tax exemption certification acceptable to all relevant taxing authorities prior to delivery.

3.4 Shipment. If shipping is required, Product will ship to Customer from the manufacturer of the Product, an authorized distributor, the Company’s third party warehouse, or the Company’s integration center.  Product is shipped as mutually agreed by the parties; if there is no express agreement, then Product is shipped F.O.B. Origin, freight prepaid and charged back, except where otherwise mutually agreed in writing.  Title, risk of loss, damage or destruction to the Product shall pass to Customer as soon as the Product is received by a common carrier with instructions to deliver the Product to the shipping address specified in the Customer’s PO.  The Company reserves the right, in its sole discretion to select the means of shipment, point of shipping, and routing.

3.5 Reserved.

3.6 Acceptance of Software and Cloud Subscription Services. Software is deemed accepted and title passes to Customer once software is sent to Customer, which shall occur electronically unless expressly stated otherwise in the Sales Quote.   Cloud subscription services are deemed accepted once the Customer receives access credentials such as user name and passcodes for such cloud subscription services.

3.7 Returns. Returns are only granted if the Product is: (i) damaged; (ii) defective (breach of warranty), or (iii) errant, all of which require compliance with and acceptance by manufacturer specifications.  Software and cloud subscription services may not be returned.  Subject to terms of the manufacturer or distributor, the Company may impose a restocking fee at its discretion.  Refunds will not be given but credits may be applied.  All returns require a Return Merchandise Authorization (“RMA”) to be filled out and returned by the Customer with five (5) days of receipt of the Product.  The RMA is available upon request.

3.8 Services for Product. Maintenance, support or other related services may be available from the Product manufacturer.  Where Customer purchases Services from Company, Company shall pass through the terms and conditions of the applicable maintenance or services contract for the Services directly to Customer.

4.  Warranties and Liability

4.1 Hardware, Software, and Cloud Subscription Warranty. Any and all warranty and warranty information, if applicable, are provided by the manufacturer of the Product, which shall pass to the Customer upon shipment of the Product.  Upon request, Company shall provide reasonable assistance to Customer for registering Product for applicable warranties.  While the Company tries to ensure the accuracy and completeness of its Product, the Company is not responsible for manufacturer’s errors.  THE MANUFACTURER’S WARRANTY, IF ANY, CONSITITUTES CUSTOMER’S SOLE AND EXCLUSIVE WARRANTIES WITH RESPECT TO THE PRODUCT AND SERVICES AND ARE IN LIEU OF ANY OTHER WARRANTY, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION THE WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

4.2 Customer’s Representations. Customer represents and warrants to the Company that: (i) Company is authorized to execute this Agreement; (ii) Customer’s execution of this Agreement will not breach any agreement to which the Customer is a party; and (iii) Customer will not resell the Product unless expressly agreed by the Parties.

4.3 Company’s Representations. Company represents and warrants that: (i) Product and all rights to sell Product and Services are owned by Company; (ii) the sale of Product and Services will include the transfer to Customer of all indemnifications, warranties, service, repair and replacement rights issued by the producer or manufacturer of Product and Services; (iii) Company shall act reasonably to assist the Customer with enforcement of manufacturer warranties; and (iv) and the Product sold under this Agreement are free and clear of all liens and encumbrances.

4.4 Indemnification. Customer will indemnify, defend, and hold harmless Company, its affiliates, and their respective employees, officer and directors from and against any and all claims, actions, loss, damages, and expenses arising out of or related to this Agreement, Customer’s use of the Product, any applicable end user licensing agreement, or violation of any applicable law by Customer.

4.5 Limitation of Liability. EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS PURSUANT TO SECTION 4.4 AND/OR FOR BREACHES OF SECTION 5 (CONFIDENTIALITY), NEITHER PARTY SHALL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL OR INDIRECT DAMAGES OF ANY KIND, REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT OR TORT, EVEN IF THE PARTY HAS BEEN ADVISED OF SUCH DAMAGES.  EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS PURSUANT TO SECTION 4.4, AND FOR BREACHES OF SECTION 5 (CONFIDENTIALITY), EITHER PARTY’S LIABILITY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO PRODUCT OR SERVICES UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNTS PAID BY CUSTOMER TO COMPANY FOR THE PRODUCT OR SERVICES GIVING RISE TO SUCH CLAIM.

 5.  Confidentiality

5.1 Confidential Information. By virtue of this Agreement the Parties may have access to information that is confidential or proprietary to the other Party (“Confidential Information”). Confidential Information shall be limited to information provided to the other Party under this Agreement, which has been identified by the disclosing Party prior to or at the time of disclosure, as confidential, or proprietary or which a reasonable person would know to be confidential or proprietary by its nature. The Parties agree not to make each other’s Confidential Information available in any form to any third party or to use each other’s Confidential Information for any purpose other than its performance under this Agreement. Each Party agrees to use the same standard of care as it uses to protect its own Confidential Information to ensure that its employees, agents, consultants and other representatives do not disclose or make any unauthorized use of the other Party’s Confidential Information.

5.2 Exclusions. Confidential Information shall not include any information that: (i) has been disclosed in publicly available sources of information, (ii) is, through no fault of either party, hereafter disclosed in publicly available sources of information, (iii) was in the possession of either party without any obligation of confidentiality, or (iv) has been or is hereafter rightfully acquired from a third party and the disclosure is authorized by the third party.

5.3 Remedies. Each Party acknowledges that any breach of the provisions of this section 5 shall result in serious and irreparable injury to the non-breaching Party for which the non-breaching Party cannot be adequately compensated. Each Party agrees, therefore, that in addition to any other remedy that the non-breaching party may have in law or equity, the non-breaching Party shall be entitled to seek specific performance of this section 5 by the breaching Party by way of an injunction.

6.  Miscellaneous 

6.1 Notices. All notices hereunder shall be in writing and deemed effectively given (i) upon personal delivery to the party; (ii) when sent by confirmed facsimile during normal business hours of the recipient, or on the next business day; (iii) three (3) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) one (1) day after deposit with a nationally recognized overnight courier. All communications shall be addressed to the addresses of the parties set forth herein. Either party may change the address for notices by giving advance written notice to the other party.

6.2 Reserved.

6.3 Waiver. The waiver by either party of any default or breach of this Agreement will be effective only in specific instances and shall not constitute a waiver of any other provision of this Agreement.

6.4 Assignment. This Agreement shall not be assigned, transferred, or any of the rights Customer obtains in the Product, be sublicensed without prior written consent of the Company. Consent will not be unreasonably delayed or denied if assignment, transfer, or sublicense of the rights is to a reputable company and is permitted by the third party licensor, if applicable (as determined in the sole discretion of the Company).

6.5 Governing Law. This Agreement shall be construed under and governed by the laws of the state in which the Company parent, affiliate, or subsidiary is headquartered excluding any conflict of laws principles that would require the application of the law of another jurisdiction.

6.6 Survival of Obligations. Any obligations and duties that by their nature extended beyond the expiration or termination of this Agreement shall survive the termination of this Agreement.

6.7 Severability. If any part of this Agreement shall be held invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect.

6.8 Entire Agreement, Amendment. This Agreement shall constitute the complete and exclusive agreement between the Parties respecting the subject matter. This Agreement may not be amended, terminated or superseded except by an agreement in writing between the Parties. This Agreement supersedes all previous agreements between the parties, whether oral or written, regarding Product and Services hereunder. Unless otherwise expressly agreed by the Parties, the Company expressly rejects all terms and conditions set forth on Customer’s PO or other documentation which are contrary to, or in addition to, or which in any way modify any of the terms and conditions contained herein.

6.9 Force Majeure. Company shall not be liable for any loss or damage, for any failure or delay in delivery due to causes beyond its control, including, but not limited to, fire, acts of God or the public enemy, terrorist act, or acts of governmental bodies or agencies.

6.10 Interpretation. This Agreement shall not be construed in favor of or against any party by reason of the extent to which any party participated in the preparation of this Agreement.

IN WITNESS WHEREOF, by authorizing the Order of Products and/or Services Customer has caused this Agreement to be executed as of the Effective Date.