Effective Date: February 7, 2025

 

These terms of service are a binding legal agreement (“Terms”, “Terms of Service” or “Agreement”) between you (“Customer”, “you” or “your”) and BigPanda, Inc. (“BigPanda,” “we,” “us” or “our”) and governs the access and use by you of BigPanda’s software-as-a-service features and functionality (the, ”SaaS”), as well as ancillary services such as implementation support to configure and enable the transfer of data from the Customer’s IT environment (“Deployment Assistance”), as well as, training and on-going support of the Services (“Support”), collectively (“Services”).  

 

By using or accessing the Services, or by registering an account to use or access the Services, you accept and agree to be bound by this Agreement. If you’re using the Services for a business or entity, you represent and warrant that the business or entity accepts these terms of service, and that you have authority to bind the business or entity to this Agreement.

 

BigPanda reserves the right to reasonably update, modify or amend Terms either to comply with applicable law or based upon new features or functionality via Customer’s acknowledgement to a click-through license.  

This Terms of Service shall apply to any current or future order form(s) for Services (collectively, “Order”) executed between the parties. Each Order will specify the service period (“Subscription Term”). Unless otherwise stated in an Order, all Subscription Terms shall auto-renew for the same length of initial service period unless otherwise terminated in accordance with this Agreement.  

 

Term.

This Agreement shall commence on the execution of an Order and continue six (6) months after the expiration or termination of the last Order unless otherwise terminating according to this Agreement. 

SaaS.

During the Subscription Term Big Panda shall provide the SaaS as identified in the applicable Order.  The SaaS shall consist of third-party software (“Third-Party Software”), as well as third-party processors to assist in the performance of services, including data storage, processing, and transmission.  Except for any notice requirements under applicable law or BigPanda’s contractual obligations within its Data Processing Addendum, BigPanda reserves the right to change, replace, or discontinue any Third-Party Software or third-party processor as needed to ensure SaaS performance, functionality or compliance with legal requirements. 

Subject to the terms and conditions of this Agreement, BigPanda hereby grants to Customer a non-exclusive, non-transferable right to access and use the SaaS during the term as and as agreed in the applicable Order(s), in accordance with then-current documentation, docs.bigpanda.io, (“Documentation”) and limited to Customer’s internal and lawful business purposes. 

Restrictions of Use for SaaS.

Customer agrees not to attempt to, nor allow any third party to: (i) copy or make derivative works of the SaaS, expand the rights of access or use beyond the Order, or make the SaaS available to any third party via sublicense, rent service bureau or time sharing basis; (ii) decompile, reverse engineer, or disassemble the SaaS or otherwise attempt to reconstruct or discover any source code, underlying ideas or algorithms of the SaaS; (iii) disclose or publish, without BigPanda’s express prior written consent, performance or capacity statistics or the results of any benchmark test performed on the SaaS; (iv) use the SaaS to develop a competitive product offering promote or support any product or service that is competitive with the SaaS; (v) attempt to gain unauthorized access to the SaaS, including access to other BigPanda customer’s data; (vi) remove any identification, patent, trademark, copyright, or other notice from the SaaS; (vii) interfere with or disrupt the integrity or performance of the SaaS, or unreasonably burden the infrastructure utilized by BigPanda to deliver the SaaS; (viii) use the SaaS including the transmission of Customer Data, in any manner that violates any law, rule, regulation or any other legal or regulatory requirement imposed by any regulatory or government agency or political subdivision, whether federal, state, local, or foreign; or (ix) otherwise use SaaS other than as specified in this Agreement, Order or Documentation.

Beta Releases & Service Enhancements.

As part of our commitment to continuous improvement and innovation, we may offer certain customers access to beta releases of new features or functionalities. Beta releases allow customers to explore and provide feedback on these enhancements before they are fully released. However, as beta releases are still in development, they may contain bugs or undergo changes. We provide access to beta releases on an “as-is” basis, with no warranties, guarantees of performance, support, or future availability. 

BigPanda may make changes to the SaaS, which can include enhancements, updates to infrastructure, or adjustments to security measures. In some cases, this process may involve sunsetting certain features that are outdated or underused, allowing us to focus our resources on features that provide greater value and align with industry standards. When material changes, including sunsetting of features, are necessary, BigPanda will provide advance notice. For clarity, if any modifications materially reduce the operation of the SaaS, such reduction will entitle the Customer to a pro-rata refund of any prepaid unused fees associated with the lost operation. 

Integration of Third-Party Applications & Platforms.

Services may support integrations with certain third-party applications and platforms (“Third-Party Services”) wherein Customer may be required to input credentials. Any access or use is entirely at the Customer’s sole discretion. By enabling any access or use of the Third-Party Services, Customer has authorized BigPanda to provide, on Customer’s behalf, an integration with the Third-Party Services and has provided all permissions required under applicable law. Customer represents and warrants that Customer, in any use of Third-Party Services, will comply with applicable law, as well as the terms, conditions and restrictions of the Third-Party Services provider. Customer acknowledges and agrees that BigPanda has no responsibility or liability for any Third-Party Services, including but not limited to, how a Third-Party Services uses or processes any information shared, including Customer Data, after such is exported to a Third-Party Services. BigPanda does not guarantee that it will continue to make available or maintain integrations with any Third-Party Services, and moreover, BigPanda may disable such integrations at any time with or without notice to Customer.  Customer agrees to indemnify, defend and hold harmless BigPanda against any claim arising out of or relating to Customer’s use of any Third-Party Services.

Deployment Assistance.

Deployment Assistance is provided to Customer to aid in the installation, configuration and implementation of Services.  This may include, as applicable, deployment of software code, such as browser extensions or application plug-ins, (“Access Points”) that are installed within the Customer’s IT environment in support of the transfer of data between the Customer’s IT environment and the Services.  The Access Points are and will remain the sole property of the BigPanda. Subject to the terms and conditions of this Agreement, Big Panda grants the Customer a non-exclusive, limited license to use, copy, prepare derivative works of, display, transmit, perform, and distribute the access points as may be necessary for the Customer to use their documented functionality, for the duration of the Subscription Term and to the limits of the scope described in the Documentation.

BigPanda may provide a statement of work (“SOW”) which describes the specifics of the Deployment Assistance.  The SOW is not intended, nor shall they be construed, as a “work for hire” under applicable law. All work produced by BigPanda under a SOW shall remain the intellectual property of BigPanda, unless otherwise expressly assigned in writing. BigPanda retains all rights, title, and interest in and to the deliverables, including any underlying technology, methodologies, or processes, subject only to the limited rights granted to Customer as outlined in this Agreement.

Support.

Support will be delivered by BigPanda in accordance with BigPanda’s then-current support terms, as they may be restated from time to time by BigPanda’s Service Level Agreement (“SLA”). The current version of the SLA is located at https://www.bigpanda.io/customer-support/ and is incorporated by reference.  Any future changes to the SLA will not materially reduce support services from the current version as of the Effective Date of this Agreement.

Documentation and any other training materials regarding the Services may be accessed or, as applicable, licensed through the Subscription Term solely for the internal purposes and in support of the Services.  Customer agrees that any Documentation and training materials are Confidential Information of BigPanda. Training, which may include, live support outside of the SLA, may be provided by BigPanda or any authorized reseller of Services.  

Customer Data & System Data.

Customer is responsible for the types of data transmitted through the SaaS that originate by or on behalf of Customer. Customer retains all ownership rights to all data that is transmitted to the SaaS by or on behalf of the Customer (collectively, “Customer Data”). Customer Data includes any information, content, or data input by Customer or generated by Customer’s use of the SaaS. Customer grants BigPanda a non-exclusive, worldwide, royalty-free, and limited license to use, process, store, reproduce, and transmit Customer Data solely to the extent necessary to provide, support, and improve the Services under this Agreement.

Customer represents and warrants to BigPanda that it has or will obtain all necessary consents, authorizations and rights and provide all necessary notices and disclosures in order to provide Customer Data to BigPanda and for BigPanda to use Customer Data in the performance of its obligations in accordance with the terms and condition of this Agreement.

Customer will not use the SaaS to store or process Highly Sensitive Information. “Highly Sensitive Information” means, for purposes of this Agreement: (1) “special categories of personal data,” “sensitive personal information,” or “Sensitive Personal Data,” as defined under applicable data protection laws; (2) patient, medical, or other protected health information regulated by the Health Insurance Portability and Accountability Act (as amended and supplemented) (“HIPAA”); or (3) other information subject to additional protections or regulation under specific laws or regulations. BigPanda shall have no responsibility for any use of Highly Sensitive Information by Customer.

Any data and data elements (other than Customer Data) collected by the SaaS regarding the configuration, environment, usage, performance, vulnerabilities and security of the SaaS that may be used to generate logs, statistics and reports regarding performance, availability, integrity and security of the SaaS is system data (“System Data”). System Data shall be owned by BigPanda and may be retained by BigPanda after the termination of this Agreement.

Data Protection Legislation.

SaaS is not intended to or if so, minimally, process Personal Information (“PI”) as defined by applicable data privacy and protection laws.  Each party will comply with any applicable data privacy and protection laws and as necessary, will agree to supplemental privacy and security terms consistent with such applicable laws. To the extent PI is processed under the Agreement, the parties expressly agree to be bound by other terms and conditions that reflect their respective legal obligations with respect to PI, parties agree to the terms and conditions of the then-current Data Processing Addendum (“DPA”) at https://trust.bigpanda.io/item/dpa which are incorporated herein by reference. For the avoidance of doubt, any PI transferred from Customer to BigPanda under this Agreement is subject to the terms of the DPA and will be processed incompliance with applicable data privacy and protection laws.  

De-identified Data & Feedback.

Customer grants to BigPanda a non-exclusive, non-transferable, worldwide, commercial, perpetual, irrevocable, royalty-free license to use de-identified data from Customer’s use of the BigPanda Services to: (i) provide and maintain SaaS; (ii) improve or offer new SaaS; (iii) measure performance of SaaS; or (iv) for any other lawful business purpose.  For clarity, de-identified data, which may include metadata or aggregated data, used by BigPanda under this Section will never identify the Customer, End User nor any individual.  

To the extent that any Customer provides any suggestions, enhancement request, correction, ideas or other feedback regarding the SaaS (“Feedback”), Customer grants BigPanda a non-exclusive, worldwide, irrevocable, royalty-free license to reproduce, modify, create derivative works of, license, distribute and otherwise commercialize the Feedback as part of any of SaaS. 

Use of Third-Party AI Models.

BigPanda may incorporate third-party large language models (“LLMs”) as part of its Services to enable certain functionalities, including but not limited to natural language processing, data analysis, and content generation. Customer acknowledges that these third-party LLMs are external to BigPanda’s direct control and BigPanda is working as an integrator and optimizing the functionality for Services. Customer may choose to contract directly with LLMs and integrate with BigPanda or utilize BigPanda’s instance.  

Customer acknowledges and agrees that any data inputted into the Services (including Customer Data) may be processed by third-party LLMs solely to perform requested functionality. Customer is responsible for ensuring that input data does not contain Highly Sensitive Information unless otherwise permitted, and that Customer has obtained all necessary rights and consents to provide such data. BigPanda will not retain or use input data for any purpose other than providing Services.  

Dependent on Customer feedback and cooperation, BigPanda will work with Customer to optimize any outputs generated by third-party LLMs (“AI Outputs”).  However, AI Outputs are provided “as-is” without warranties of accuracy, completeness, or fitness for a particular purpose. BigPanda makes no guarantees regarding the accuracy or reliability of AI Outputs and recommends that Customer independently verify and validate any critical information derived from AI Outputs before using it. AI Outputs may be subject to limitations, and BigPanda disclaims liability for errors or unintended results from reliance on such outputs.

BigPanda shall not be liable for any damages arising from inaccuracies, limitations, or unintended consequences of using AI Outputs. This limitation includes but is not limited to any liability arising from misinterpretations, errors in processing, or application of AI Outputs. Customer assumes all responsibility for the use and reliance on AI Outputs and agrees that any claims arising from third-party LLMs shall be limited to the extent permitted by law.

Security, Breach Notification & Business Continuity.

BigPanda will comply with the then current security standards for the SaaS found at https://trust.bigpanda.io/item/security-standards. BigPanda will, consistent with industry standard practices, implement and maintain physical, administrative and technical safeguards and other security measures: (a) to maintain the security and confidentiality of Customer Data; (b) to maintain the availability and integrity of Customer Data; and (c) to protect Customer Data from known or reasonably anticipated threats or hazards to its security, including accidental loss, unauthorized use, access, alteration or disclosure. 

BigPanda will inform Customer without undue delay upon discovery of any actual unauthorized access to, any unauthorized loss, use or disclosure of any Customer Data (a “Security Incident”). BigPanda will investigate the cause of the Security Incident and take reasonable steps to prevent further unauthorized access, loss, use or disclosure of Customer Data. BigPanda will reasonably cooperate with Customer in complying with its obligations under applicable law pertaining to responding to a Security Incident. BigPanda’s obligation to report or respond to a Security Incident under this Section is not an acknowledgement by BigPanda of any fault or liability with respect to the Security Incident.

BigPanda shall maintain a business continuity plan designed to minimize disruptions to the SaaS under this Agreement. In the event of a disruption, BigPanda use all commercially reasonable measures to mitigate the impact to Customer and will promptly inform the Customer of the expected timeline until resolution.

Limited Warranties and Disclaimers.

With respect to Services, Services shall conform in substantial conformance to the functionality as set forth in the applicable then-current Documentation.

The preceding obligation will not apply if: (i) the Services provided are used inconsistent with this Agreement or the Documentation; (ii) if Services or any part thereof have been modified without the prior written consent of BigPanda; or (iii) a defect in Services provided hereunder has been caused by any of Customer’s IT infrastructure, including but not limited to, Customer’s equipment, software or third-party software. In addition, the preceding obligation does not apply to downtime, service interruption or other related issues covered by BigPanda’s SLA. Customer’s sole and exclusive remedies for BigPanda’s failure to meet an SLA Obligation is described in the applicable SLA.

In the event Customer discovers that the Services provided by BigPanda hereunder, as applicable, are not operating as documented in an Order, Documentation or this Agreement and promptly reports such operational error to BigPanda in writing, BigPanda will  (i) exercise commercially reasonable efforts to correct the operational error at no additional charge to Customer, or, if BigPanda’s reasonable discretion, is unable to correct the operational error (ii) refund Customer any unused, prepaid fees covering the remainder of the then-current Service Term dating from the receipt of Customer’s written notice. THE REMEDY STATED IN THIS PARAGRAPH AND THE REMEDY STATED IN BIGPANDA’S SLA, AS APPLICABLE, CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND BIGPANDA’S ENTIRE LIABILITY UNDER THIS SECTION OF THIS AGREEMENT.

EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES PROVIDED HEREUNDER ARE PROVIDED “AS IS” AND BIGPANDA MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT.  BIGPANDA DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS; OR (B) THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE.

Intellectual Property & Trademarks.

Services, Access Point(s), Documentation, System Data, including but not limited to, the structure, format, templates, and methodologies used to generate reports, analytics, visualizations, or other methodologies of outputs, and any content, information, or data, excluding Customer Data, embodied in or used in connection with the implementation, operation, improvement, maintenance, or hosting of the Services including all associated software (whether in source code, object code, or other form), methodologies, and all intellectual property and other rights, title, and interest therein (including copyrights, trade secrets, and all rights in patents, custom reports, compilations, algorithms, inventions, improvements, modifications, extensions, enhancements, configurations, derivative works, discoveries, processes, methods, designs and know-how (regardless of whether copyrightable or patentable) pertaining to any of the foregoing (all of which shall be deemed part of the “BigPanda Proprietary Materials”), whether conceived by BigPanda alone or in conjunction with others constitute Confidential Information and the valuable intellectual property, proprietary material, and trade secrets of BigPanda and our licensors and are protected by applicable intellectual property laws of the United States and other countries.  Customer acknowledges and agrees that except for the rights of access or license expressly granted to Customer in this Agreement, BigPanda shall retain all right, title and interest in and to the foregoing, inclusive of any derivatives, modifications or improvements and nothing contained in this Agreement shall be construed as conferring upon Customer by implication, operation of law, estoppel, or otherwise, any other license or right to BigPanda Proprietary Materials

Each party shall strictly comply with all standards with respect to the other party’s trademarks which may be furnished by such party from time to time. Further, neither party shall create a combination mark consisting of one or more marks of the other party. All uses of the other party’s marks shall inure to the benefit of the party owning such mark. Notwithstanding the foregoing, upon the execution of an Order, BigPanda may identify Customer by name, with or without use of the Customer’s trademark, in general promotional lists of BigPanda’s customers.

Confidentiality.

Confidential Information means any data or information disclosed to one party, oral or written, wherein a reasonable person with general industry knowledge would likely understand such information is non-public, sensitive, proprietary or confidential.  Such information includes, but is not limited to, BigPanda Proprietary Materials & Documentation (in whatever form or media provided), inventions, internal processes, plans, financial information, Customer Data, System Data, pricing and the terms and conditions of this Agreement. Notwithstanding the foregoing, Confidential Information shall not include information that the receiving party may reasonably demonstrate: (i) is in or has entered the public domain through no breach of this Agreement; (ii) it has been rightfully received by the receiving party from a third party and without breach of any obligation of confidentiality of such third party to the owner of the Confidential Information; (iii) it has been approved for release by written authorization of the owner of the Confidential Information; or (iv) was independently developed by a party without use of or access to the Confidential Information of the other party.

Each party acknowledges and agrees that, from time to time, it may receive Confidential Information from the other party. The party that receives Confidential Information (the Receiving Party) hereby agrees (i) to hold the other party’s (the Disclosing Party) Confidential Information in confidence and to take reasonable precautions to protect such Confidential Information from unauthorized disclosure (including, without limitation, all precautions the Receiving Party employs with respect to its own confidential materials), (ii) not to make any use whatsoever at any time of such Confidential Information except in furtherance of this Agreement, (iv) not to copy or reverse engineer any such Confidential Information, and (v) that any employee, subcontractor, or agent given access to any such Confidential Information must have a legitimate need to know and shall be bound in writing to comply with confidentiality obligations at least as restrictive as the Receiving Party’s confidentiality obligations in this Agreement.

Notwithstanding the above, the Receiving Party may disclose Confidential Information only to the extent legally compelled by a court or other government authority, provided, however, that the Receiving Party will, to the extent legally permissible, give prompt written notice to the Disclosing Party of such legal process upon receipt so that the Disclosing Party may seek an appropriate protective order, or pursue such other legal action, as the Disclosing Party may deem appropriate. 

Each party’s confidentiality obligations will survive for one (1) year after such Receiving Party no longer holds any of Disclosing Party’s Confidentiality Information in its possession, custody or control.  Customer understands and agrees that BigPanda shall delete any Customer Data within ninety (90) days of termination.  Prior to its deletion, BigPanda will ensure appropriate access for Customer to download any Customer Data from the SaaS it wishes to retain during the first thirty (30) days after termination.  

This Section shall replace any prior agreement, written or oral, regarding confidentiality and/or non-disclosure obligations.

Fees & Payment.

Customer shall pay to BigPanda the amounts as set forth on the Order.  All fees are non-refundable and non-cancelable. Fees listed do not include any applicable sales, use, withholding, excise or VAT taxes. Customer shall be responsible for payment of all such taxes, fees, duties and charges, and any related penalties and interest, arising from the payment of such fees or the delivery or use of the Services.

In the event of a good faith dispute as to the fees on an invoice, Customer shall promptly give written notice to BigPanda stating the details of any such dispute and shall promptly pay any undisputed amount. The acceptance by BigPanda of such partial payment shall not constitute a waiver of payment in full by BigPanda of the disputed amount. Customer agrees to pay all costs and expenses of whatever nature, including reasonable attorneys’ fees, incurred by or on behalf of BigPanda in connection with the collection of any unpaid amounts that were rightfully owed to BigPanda hereunder.

Any undisputed amount due to BigPanda under this Agreement and not paid within 30 days of invoice due date or as otherwise stated on the Order may be subject to a finance charge payable by Customer which is equal to one and one-half percent (1.5%) or the highest rate allowable by law, whichever is less, determined and compounded daily from the date such amount is due until the date such amount is paid. Notwithstanding anything to the contrary contained in this Agreement, failure to make timely payments of undisputed amounts shall constitute a default hereunder and shall entitle BigPanda to suspend Customer’s access to the Services without notice at BigPanda’s sole discretion.

 

Indemnification.

BigPanda will defend Customer against, and will indemnify Customer against final award of damages paid to unaffiliated third parties that brought the claim and arising out of any claim that the SaaS, during the Term, infringe any U.S. patent issued as of the Effective Date (“Claim”); provided that: (i) Customer promptly notifies BigPanda in writing after Customer’s receipt of notification of a potential Claim; (ii) BigPanda shall have the right to assume sole control of the defense of such Claim and all related settlement negotiations; and (iii) Customer provides BigPanda, at BigPanda’s request and expense, with the assistance, information and authority necessary to perform BigPanda’s obligations under this Section.  Notwithstanding the foregoing, BigPanda shall have no liability for any Claim to the extent it is based on (i) Customer’s written specifications or direction; (ii) Customer’s or any agent of Customer’s modification of the SaaS without BigPanda’s written approval; (iii) Customer’s IT infrastructure or their Customer’s software. Customer reserves the right to retain counsel at its own expense to participate in the defense and settlement of any such Claim. If, due to a Claim, (i) the SaaS are held by a court of competent jurisdiction to be or are believed by BigPanda to infringe, or (ii) Customer receives a valid court order enjoining Customer from using the SaaS, BigPanda may at its expense, (i) replace or modify the SaaS to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, or (ii) obtain for Customer a license to continue using the SaaS or (iii) terminate the applicable Order and its indemnity obligation for further activity by requesting that Customer cease use of the offending BigPanda Service  and then refunding to Customer any prepaid and unused fees representing the remainder of the Subscription Term. THE FOREGOING STATES THE ENTIRE LIABILITY OF BIGPANDA WITH RESPECT TO THE INFRINGEMENT OF ANY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS BY THE SAAS OR OTHERWISE, AND CUSTOMER HEREBY EXPRESSLY WAIVES ANY OTHER LIABILITIES OR OBLIGATIONS WITH RESPECT THERETO.

 

Limitation of Liability.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT FOR BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR ANY OTHER LEGAL OR EQUITABLE THEORY FOR: (I) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE, PROFITS OR BUSINESS, COSTS OF DELAY, COSTS OF LOST OR DAMAGED DATA OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE; COST OF PROCUREMENT OF SUBSTITUTE SERVICES, OR (II) ANY AMOUNTS IN EXCESS, IN THE AGGREGATE, OF THE FEES PAID OR PAYABLE TO BIGPANDA HEREUNDER DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.

THE EXCLUSIONS OF AND LIMITATIONS ON LIABILITY SET FORTH HEREIN WILL NOT APPLY TO A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD.

THE EXCLUSIONS OF AND LIMITATIONS ON LIABILITY SET FORTH HEREIN (II) WILL NOT APPLY TO ANY COSTS OF DEFENSE AND ANY AMOUNTS AWARDED AGAINST AN INDEMNIFIED PARTY BY A COURT OF COMPETENT JURISDICTION OR AGREED UPON PURSUANT TO SETTLEMENT AGREEMENT THAT ARE SUBJECT TO SUCH PARTY’S INDEMNIFICATION AND DEFENSE OBLIGATIONS UNDER THIS AGREEMENT.

 

Termination and Effects. 

Either party may terminate any Order(s) upon written notice to the other party if the other party is in material breach of any obligation under this Agreement and fails to cure such breach within thirty (30) days following receipt of written notice detailing the breach. If the breaching party does not cure the breach within this cure period, the non-breaching party may terminate the Agreement or any Order(s) effective immediately upon written notice.  

Upon termination for any reason, except for a limited right to access and download Customer Data for a period not to exceed 30 days, any and all rights of access or licenses granted to the Services and the Documentation shall expire. BigPanda shall discontinue the provision of the Services, and Customer shall promptly pay any outstanding invoices for Services rendered through the date of termination.  

Any provision of this Agreement that contemplates performance or observance subsequent to any termination or expiration of this Agreement, including, without limitation, all provisions with respect to Intellectual Property, limitation of liabilities, indemnification, governing law and arbitration shall survive any termination or expiration of this Agreement and continue in full force and effect in perpetuity.

 

General Terms.

Customer acknowledges that the Services, including any software, documentation, and technical data provided by BigPanda, may be subject to U.S. export control laws and regulations, as well as similar laws applicable in other jurisdictions. BigPanda represents that the services provided under this Agreement are not classified under strict export controls and are intended for general commercial use. Customer agrees not to use, export, re-export, or transfer the Services or any related content in violation of applicable export control laws and regulations. Customer is solely responsible for compliance with all applicable import, export, and re-export control laws, including obtaining any required governmental authorizations, and shall not use the Services in any jurisdiction or by any person where such use is restricted or prohibited by law. 

The parties shall perform all of their duties under this Agreement as independent contractors, and nothing in this Agreement shall be construed to give either party the power to direct or control the activities of the other party, or to constitute the parties as principal and agent, employer and employee, franchiser and franchisee, partners, joint venturers, co-owners, or otherwise as participants in a joint undertaking. The parties understand and agree that neither party grants the other party the power or authority to make or give any agreement, statement, representation, warranty, or other commitment on behalf of the other party, or to enter into any contract or otherwise incur any liability or obligation, express or implied, on behalf of the other party, or to transfer, release, or waive any right, title or interest of such other party.

Neither this Agreement nor any rights hereunder may be transferred or assigned by either party without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed.  Notwithstanding the foregoing, either party may assign or transfer this Agreement or any rights or obligations hereunder without the other party’s consent to a third-party acquirer of all, or substantially all, of the assets or business of a party, whether by sale, merger, or otherwise. Except as provided in this section, any attempts by either party to assign any of its rights or delegate any of its duties hereunder without the prior written consent of the other party shall be null and void.

Neither party hereto shall be responsible for any failure to perform its obligations under this Agreement if such failure is caused by acts of God, natural disasters, war, acts of terrorism, strikes, revolutions, lack or failure of third party infrastructure, lack or failure of public or private utilities, laws or governmental regulations (including legislation that makes performance herein impossible,  impractical, or economically unreasonable) or any other causes that are beyond the reasonable control of such party. Obligations hereunder, however, shall in no event be excused but shall be suspended only until the cessation of any cause of such failure. In the event that such force majeure should obstruct performance of this Agreement for more than ten (10) business days, the parties hereto shall consult with each other to determine whether this Agreement should be modified or terminated.

This Agreement shall be governed by and construed under the laws of the State of California and the United States without regard to conflicts of laws provisions thereof and without regard to the United Nations Convention on Contracts for the International Sale of Goods, and the parties consent to exclusive jurisdiction and venue of the State or Federal Courts located in San Francisco County, California.  Any dispute arising from or relating to the subject matter of this Agreement that cannot be resolved thereby within a period of 30 days after written notice of a dispute has been given by one party hereunder to the other, shall be finally settled by arbitration in San Francisco, California, using the English language in accordance with the Arbitration Rules and Procedures of JAMS/Endispute (“JAMS”) then in effect, by an arbitrator with substantial experience in resolving complex commercial contract disputes, who will be chosen from the appropriate list of JAMS arbitrators. If the parties cannot agree upon the identity of an arbitrator within 15 days following the arbitration date, then an arbitrator shall be selected on an expedited basis in accordance with the Arbitration Rules and Procedures of JAMS. The arbitrator shall have the authority to grant specific performance and to allocate between the parties the costs of arbitration (including service fees, arbitrator fees and all other fees related to the arbitration) in such equitable manner as the arbitrator may determine. The prevailing party in the arbitration shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys’ fees, expert witness fees and all other expenses) incurred in connection therewith. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for preliminary injunctive relief pending a final decision by the arbitrator, provided that a permanent injunction and damages shall only be awarded by the arbitrator. 

This Agreement, and any other references, appendices, exhibits or attachments, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes any and all written or oral prior agreements and understandings between the parties concerning such subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment, or waiver is to be asserted. Additionally, terms, provisions or conditions on any purchase order, acknowledgement, or other business form or writing (aside from an Order) that Customer may provide to BigPanda or use in connection with the procurement of Services will have no effect on the rights, duties or obligations of the parties hereunder, regardless of any failure of BigPanda to object to such terms, provisions or conditions. In the event of any conflict or inconsistency among the following documents, the order of preference shall be: (1) Order(s) (2) this Agreement, then (3) SOW. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, a modified provision shall be substituted which carries out as nearly as possible the original intent of the parties, and the validity, legality and enforceability of any of the remaining provisions shall not in any way be affected or impaired thereby.

The waiver by either party of a breach of any provision contained herein shall be in writing and shall in no way be construed as a waiver of any subsequent breach of such provision or the waiver of the provision itself. Failure or delay by either party in exercising any right hereunder shall not operate as a waiver of such right.

Any notice required or permitted to be given hereunder will be deemed to have been delivered and given for all purposes: (i) on the delivery date, if delivered by hand courier to the party to whom such notice is directed; (ii) two (2) Business Days after deposit with a commercial overnight carrier; (iii) five (5) Business Days when mailed by United States mail with certified receipt; and (iv) if sent via email with a confirmation by the recipient of receipt. Suspension-related notices to Customer may be sent to the account holder designated in the BigPanda Dashboard.