2.1. “Confidential Information” means information, software and materials provided by Pivotal to you, including software, information and materials of third parties, which are in tangible form and labeled “confidential” or the like, or, information which a reasonable person knew or should have known to be confidential. The following information shall be considered our Confidential Information whether or not marked or identified as such: login credentials, software, technical information and documentation relating to the Service Offerings that is not otherwise made generally available to the public by Pivotal.
2.2. “Content” means any and all applications, files, information, materials, data, software, or other content uploaded to, stored, published or displayed through the Service Offerings.
2.3. “Login Credentials” mean any passwords, authentication keys and security credentials that enable your access to the Service Offering.
2.4. “Marketplace” means the Pivotal Cloud Foundry Marketplace posted at https://console.run.pivotal.io/marketplace.
2.6. “Services Description(s)” means any description of or information about the Service Offerings made available to you through this site or any usage or access instructions that we provide to you and which we may modify from time to time in accordance with this Agreement.
2.7. “Subscription Term” means the time period during which we agree to provide you access to the Service Offerings, as specified when you register for the Service Offerings.
2.8 “Support Policy” means the then-current version of the Service Offering Support Policy document posted at http://support.run.pivotal.io, which we may modify from time to time in accordance with this Agreement.
2.9. “Third Party Content” means third party data, Content, services, or applications, including open source software.
2.10. “Third Party Terms” means the then-current version of the third-party terms and conditions applicable to your access to any Third Party Content.
2.11. “Usage Data” means information regarding your use of the Service Offerings, such as information on the amount of computing and storage resources purchased or consumed, applications, application components, and application dependency data, user counts, and third party licenses consumed. Usage Data may also include information related to the use of optional or third party or co-branded services provided to you through the Service Offering.
2.12. “Your Content” means any Content published or displayed through the Service Offerings by you, your authorized users (or otherwise through your account), or any third party users who access any service you provide with the Service Offerings. Your Content includes Relationship Data, but does not include Usage Data.
The Service Offerings
3.1. Generally. All access to, and use of, any Service Offerings are subject to the terms and conditions of this PWS Agreement. We may deliver the Service Offering to you with the assistance of our affiliates, licensors and service providers. You will comply with all laws, rules and regulations applicable to your use of the Service Offering, and with the Third Party Terms, the Service Descriptions, and the Support Policy.
3.2. Access to the Service Offering. You may access and use the Service Offering for solely your own benefit (or the benefit of your organization). To access the Service Offering, you must register for the Service Offering and set up an authorized account with Login Credentials. You shall keep your Login Credentials confidential. If you set up an authorized account for an organization, you must ensure that all users whom you authorize to use that account (which may include third parties who provide services to you) to keep their Login Credentials confidential and not share their Login Credentials with any unauthorized person. You will keep your registration information accurate, complete and current as long as you continue to use the Service Offering. You are responsible for any use that occurs under your Login Credentials. If you believe an unauthorized user has gained access to your Login Credentials, you shall notify us immediately. Neither we nor our affiliates are responsible for any unauthorized access to or use of your account.
3.3. Third Party Content. The Service Offering may also include access to “buildpacks” developed by a third party. Some buildpacks may be used only for development, and not for production, purposes, so you should consult the applicable Third Party Terms for details. These limited use buildpacks are posted at https://run.pivotal.io/policies/limited-use-buildpacks. For Third Party Content that is available in the Marketplace, the applicable Third Party Terms may be made available to you through the Marketplace. For other Third Party Content that is provided outside the Marketplace, the terms will be available to you through a notification within the Service Offering or the Third Party Terms. It is your responsibility to check the Third Party Terms available on each third party provider’s website or this site, which we may modify from time to time in accordance with this Agreement, for any terms or restrictions applicable to your use of Third Party Content. We may provide billing and related services associated with the Third Party Content, but do not provide any support for the Third Party Content unless otherwise set forth in the Support Policy and are not responsible for Third Party Content. We reserve the right to suspend or terminate the Third Party Content at any time but will use commercially reasonable efforts to provide reasonable notice of the termination or suspension.
3.4. Beta Features. We may make certain features or functionality within the Service Offering available to you on a beta basis. If you use these beta features or functions, you may only use them for evaluation purposes and for the period that we specify. We provide these beta features and functions on an “AS-IS” basis without indemnification or support and disclaim all warranties of any kind (including warranties of merchantability, satisfactory quality, fitness for a particular purposes, and non-infringement), express or implied. Any beta features or functionality made available to you for evaluation do not constitute an implied commitment to offer to you or anyone such features and functionality as part of the Service Offering on a generally available basis.
3.5. Free/Open Source Software. To the extent any Service Offering contains open source software, the underlying open source code for such open source software components of the Service Offering may be made available to you under a combination of free or open source licenses, which can be found in the “LICENSE” file (or similar file) in the Cloud Foundry source code. You may obtain a copy of these licenses and any source code (and modifications) that we are required to make available under these licenses (the “Source Files”) at http://github.com/cloudfoundry. You may also obtain a copy of the applicable Source Files by sending a written request, with your name and address to: Pivotal Software, Inc., 875 Howard Street, 5th Floor, San Francisco, CA 94103. All such requests should clearly specify: Open Source Files Request, Attention: General Counsel. This offer to obtain a copy of the Source Files is valid for three years from the date you first acquired access to the Service Offering.
3.6. Relationship Data. We may collect Relationship Data. You agree that we may use and disclose Relationship Data to manage your account, send you notifications, deliver services or information, bill you for purchased services, improve, develop and market new products and services, monitor compliance and provide support. We may further use and share Relationship Data to provide the Service Offering to you, including sharing with our affiliates as described above and entities who provide payment processing and other services to us necessary to enable us to support the Service Offering, and as required by applicable law.
3.7. Usage Data. We may generate, collect, store and use Usage Data for any purpose. You agree that, as between you and Pivotal, Pivotal owns all such Usage Data. By way of example, we use Usage Data to track and manage our infrastructure, network storage, and software for billing, monitoring security and application dependencies, capacity planning and other product forecasting, improvement and development purposes. We may further share Usage Data with our affiliates and third party providers to fulfill our contractual obligations such as software license consumption and reporting. You agree that we may use, analyze, and otherwise perform any operations on or in connection with Relationship Data, Usage Data and your Content to provide the services to which you have subscribed under this PWS Agreement. Without limiting the foregoing, unless prohibited by applicable law, we may aggregate Usage Data such that it is not reasonably identifiable with or to the customer to which it relates (“Aggregate Data”). We may use and disclose Aggregate Data for any purpose.
3.8. Disclosure of Data and your Content. You agree that Pivotal may disclose your Content, Relationship Data and Usage Data in the following circumstances:
3.8.1. to our affiliates and other entities of the Pivotal group of companies worldwide for the purposes set forth in this PWS Agreement;
3.8.2. to Pivotal’s third-party service providers worldwide who provide services such as website hosting, data analysis, payment processing, order fulfillment, information technology and related infrastructure provision, customer service, email delivery, credit card processing, auditing and other similar services;
3.8.3. to a third party in the event of any reorganization, merger, sale, joint venture, assignment, transfer or other disposition of all or any portion of Pivotal’s business, assets or stock (including in connection with any bankruptcy or similar proceedings); and
3.8.4. as Pivotal believes to be necessary or appropriate:
126.96.36.199. under applicable law, including laws outside your country of residence;
188.8.131.52. to comply with legal process;
184.108.40.206. to respond to requests from public and government authorities including public and government authorities outside your country of residence;
220.127.116.11. to enforce this PWS Agreement;
18.104.22.168. to protect Pivotal’s operations or those of any of its affiliates;
22.214.171.124. to protect Pivotal’s rights, privacy, safety or property, and/or that of Pivotal’s affiliates, you or others; and
126.96.36.199. to allow Pivotal to pursue available remedies or limit the damages that Pivotal may sustain.
4.1. Access to your Content. You are solely responsible for your Content. We are only acting as a passive conduit for the online distribution and publication of your Content. The Service Offering performs operations on, and distributes, your Content. You and your authorized users retain all of your respective rights, title and interest in and to your Content. Our rights to access and use your Content are limited to those expressly granted in this PWS Agreement. No other rights with respect to your Content are implied. In terms of applicable data privacy laws we are acting as a data processor on your (the data controller’s) behalf regarding your content to the extent it constitutes personal data as per the applicable privacy laws.
4.3. Transfer of your Content. You consent that we may store your Content in the United States or any other country in which we have a data center in our discretion. By uploading your Content into the Service Offering, you may transfer and access your Content from around the world, including to and from the United States. To the extent you provide your Content in connection with customer support, you consent that we may handle your Content in any country in which we or our agents maintain facilities. It is your responsibility to ensure that you comply with applicable law when you transfer data across geographies.
5.1. Content Restrictions. You will not, and you will take steps to ensure that your authorized users and third party users who access any service you provide with the Service Offering do not, post Content that:
5.1.1. may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to an authorized user, or any other person or entity;
5.1.2. may create a risk of any other loss or damage to any person or property;
5.1.3. may constitute or contribute to a crime or tort;
5.1.4. contains any information or content that is unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, or otherwise objectionable;
5.1.5. contains any information or content that is illegal; or
5.1.6. contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships.
5.2. You represent and warrant that the Content does not and will not violate third-party rights of any kind, including without limitation any Intellectual Property Rights, and rights of publicity and privacy. You shall ensure that your use of the Service Offering complies at all times with your privacy policies and all applicable local, state, federal and international laws and regulations, including any encryption requirements.
5.3. Violations of Acceptable Use. If you become aware that any of your Content or your user’s use of your Content violates this PWS Agreement, you shall immediately suspend or remove the applicable Content or suspend access the end user’s access. If you fail to do so, we may ask you to do so. If you fail to comply with our request, we may suspend your account or disable the applicable Content until you comply with our request.
Ownership of Service Offering and Rights to Feedback
6.1. Ownership of Service Offering. We and our licensors own and retain all right, title and interest in and to the Service Offering, including all improvements, enhancements, modifications and derivative works thereof, and all Intellectual Property Rights therein. This includes any information that we collect and analyze in connection with the Service Offering, such as usage patterns, user feedback and other information to improve and evolve our products and services offerings. your rights to use the Service Offering are limited to those expressly granted in this PWS Agreement. No other rights with respect to the Service Offering or any related Intellectual Property Rights are implied.
6.2. Feedback. If you provide comments, suggestions or other feedback to us regarding the Service Offering or Pivotal’s technology or business (the “Feedback”), you agree that we will be free to use any Feedback You provide for any purpose. You hereby grant to us a non-exclusive, perpetual, irrevocable, royalty-free, transferable, worldwide right and license, with the right to grant and authorize sublicenses, to use, reproduce, perform, display, disclose, distribute, modify, prepare derivative works of and otherwise use the Feedback without restriction in any manner now known or in the future conceived and to make, use, sell, offer to sell, import and export any product or service that incorporates or is based in whole or in part on the Feedback.
Payment and Taxes
7.1. Terms. You shall pay all fees in the amount, currency and through the process specified at the time you purchase any fee-bearing Service Offering or as described in the Marketplace. You shall pay all fees by the due date applicable to your subscription. The fee schedule is posted at https://run.pivotal.io/pricing and in the Marketplace, and we may revise the schedules from time to time in accordance with this Agreement. We are not required to provide any fee-bearing Service Offering to you until you provide all information we require for processing your request. Your request for a fee-bearing Service Offering will be deemed accepted when we authorize the purchased Service Offering for your Login Credentials. If your usage of the Service Offering exceeds the amount for which you have paid, we will invoice you for all applicable additional fees, and you will pay us for the invoiced amounts within thirty (30) days of the date of the applicable invoice. Except as expressly set forth in this PWS Agreement, fees are non-refundable and amounts not paid when due shall incur a late fee equal to the lesser of one and one-half percent (1.5%) per month or the maximum amount allowed by applicable law. We may suspend the delivery of the Service Offering while any payment is delinquent by fourteen (14) days, and delete your account after thirty (30) days of non-payment.
7.2. If You Provide Us with Your Credit Card Information. You are agreeing to automatic credit and/or debit card payments by Pivotal’s third party provider for each billing cycle applicable to your subscription until you cancel your account by: (a) deleting your “organization” from the org settings within the Developer Console at https://console.run.pivotal.io/; or (b) stopping each application in your “organization” using the “cf stop” command line and shutting down or deleting your account for each third party service that you are using from the Marketplace (instructions vary by third party service, see the applicable terms from each provider), subject to compliance with the relevant card scheme rules applicable to the jurisdiction in which the card is issued. You will receive a statement at the end of every billing cycle and you will have seven (7) days to review your statement and notify us of any corrections. We will not request additional authorization before processing each monthly payment after the review period, subject to compliance with the relevant card scheme rules applicable to the jurisdiction in which the card is issued. Billing cycles start and end based on the monthly anniversary date determined when you created your account.
7.3. Taxes. Service Offering fees are exclusive of taxes, and you shall pay or reimburse us for all taxes arising out of transactions contemplated by this PWS Agreement. You may not withhold any portion of payments due under this PWS Agreement. “Taxes” means any sales, use, gross receipts, business and occupation, and other taxes (other than taxes on our NET income), export and import fees, customs duties and similar charges imposed by any government or other authority. You hereby confirm that we can rely on the name and address you provide to use when you sign up for the Service Offering or in connection with your payment method as being the place of supply for sales tax and income tax purposes or as being the place of supply for VAT purposes where you have established your business.
8.1. General. We may suspend your use of the Service Offering if we determine in our sole discretion:
8.1.1. payment for the Service Offering is delinquent by fourteen (14) days from the date on which payment is due;
8.1.2. you or your use of the Service Offering is in breach of this PWS Agreement, including violation of Acceptable Use requirements;
8.1.3. your use of the Service Offering poses a security risk to the Service Offering or other users of the Service Offering, or interferes with, disrupts, damages, or accesses in an unauthorized manner the servers, networks, or other properties or services of any third party including Pivotal or any mobile communications carrier; or
8.1.4. suspension is required pursuant to our receipt of a subpoena, court order or other request by a law enforcement agency.
8.2. Effect of Suspension. You will remain responsible for all fees incurred before or during the suspension.
Term and Termination
9.1. Term. This PWS Agreement will commence at the point you first access the Service Offering and will be effective through the Subscription Term, unless terminated earlier as permitted under the PWS Agreement.
9.2.1. Termination for Cause. We may terminate this PWS Agreement effective immediately if: (a) we determine, in our sole discretion, if you have breached any of the provisions of this PWS Agreement; (b) you breach a provision of this PWS Agreement that is not capable of being cured; or (c) you breach any provision of this PWS Agreement that is capable of being cured and do not cure the breach within thirty (30) days after receiving an email identifying the breach from us; or (d) any payment is delinquent by thirty (30) days from the due date.
9.2.2. Termination for Insolvency. We may terminate this Tracker Agreement effective immediately upon sending you an email notification of termination if you: (a) terminate or suspend your business; (b) become insolvent, admit in writing your inability to pay your debts as they mature, make an assignment for the benefit of creditors; (c) become subject to control of a trustee, receiver or similar authority; or (d) become subject to any bankruptcy or insolvency proceeding.
9.2.3. Termination for Convenience. You may terminate this PWS Agreement at any time by cancelling your authorized account. If you have paid us any prepaid fees, and are entitled to a refund as set forth in the applicable payment terms, we will refund you on a pro-rata basis any unused fees, exclusive of fees paid for Third Party Content or third party services.
9.2.4. Effect of Termination. Upon the termination of this PWS Agreement for any reason: (a) all rights granted to you under this PWS Agreement, including your ability to access any of your Content stored in the Service Offering, will immediately terminate; and (b) you must promptly discontinue all access or use of the Service Offering and delete or destroy any of our Confidential Information. For a period of thirty (30) days following the termination, we will not delete your Content as a result of this termination, although you will cease to have access to the Service Offering or your Content during this period. Free/Open Source Software, Relationship Data, Usage Data, Disclosure of Data and your Content, your Content, Acceptable Use, IP Ownership, Payment and Taxes, Term and Termination, Confidential Information, and Country-Specific Terms, will survive the termination of this PWS Agreement. Except as expressly provided in Termination for Convenience, termination of the Service Offering will not entitle you to any refunds, credits, or exchanges, and you will be liable for all monthly billing fees for the remainder of the Subscription Term after termination, as well as all usage and other fees incurred up to the termination date.
10.1. Successors and Assigns. This PWS Agreement may not be assigned without the express written consent of the other party, not to be unreasonably withheld, conditioned or delayed, except that Pivotal may assign or transfer this PWS Agreement, in whole or in part, without your consent to any successors-in-interest to all or substantially all of the business or assets of Pivotal whether by merger, reorganization, asset sale or otherwise, or to any subsidiaries or affiliates of Pivotal. Any purported transfer or assignment in violation of this section is void. Subject to the foregoing restrictions, the terms and conditions of this PWS Agreement shall inure to the benefit of and be binding upon the respective permitted successors and assigns of the parties.
10.2. Compliance with Laws; Export Control; Government Regulations. Each party shall comply with all laws applicable to the actions contemplated by this PWS Agreement. You acknowledge that the Service Offering and all software and technical information relating thereto is of United States origin, is provided subject to the U.S. Export Administration Regulations, may be subject to the export control laws of the applicable territory, and that diversion contrary to applicable export control laws is prohibited. You represent that: (a) you are not, and are not acting on behalf of (i) any person who is a citizen, national, or resident of, or who is controlled by the government of any country to which the United States has prohibited export transactions, or (ii) any person or entity listed on the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons, or the U.S. Commerce Department Denied Persons List or Entity List; and (b) you will not permit the Service Offering to be used for, any purposes prohibited by law, including, any prohibited development, design, manufacture or production of missiles or nuclear, chemical or biological weapons. If any software or related documentation is licensed to the United States government or any agency thereof, then the such software and documentation will be deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFARS Section 227.7202 and FAR Section 12.212, as applicable. Any use, reproduction, release, performance, display or disclosure of the software and any related documentation by the U.S. Government will be governed solely by this PWS Agreement and is prohibited except to the extent expressly permitted by this PWS Agreement.
10.3. Modifications. We may change periodically the Service Offering, the terms of your access to the Service Offerings, this PWS Agreement, the Service Description, or the Support Policy. It is your responsibility to regularly check the Service Offerings console for updates. We will notify you of any material detrimental change to the Service Offering, PWS Agreement or Support Policy by sending you an email or by posting a notice of the modification on the Service Offering console. The modified PWS Agreement, Service Description, or Support Policy, as applicable, will become effective as of the date stated in that notification. If we make a material change that is detrimental to You to the Service Offerings (other than the termination or modification of any beta feature or functionality), this PWS Agreement, the Service Description, or the Support Policy, you may terminate this PWS Agreement on notice to us within ten (10) days of the change or within ten (10) days of our modification notice; in that event, the termination will be effective as of the date we receive your notification. We will refund to you any prepaid fees, prorated for the remainder of your Subscription Term. your continued use of the Service Offering after the effective date of any modification to the PWS Agreement, the Service Description, the Third Party Terms, or the Support Policy shall be deemed acceptance of the applicable modification.
These Terms were last updated on November 29, 2018.