Effective Date: March 27, 2020

These Terms of Service (“Terms”) are a legal agreement between you (“you” or “your”) and BigPanda, Inc. (“BigPanda,” “we,” “us” or “our”) and govern your use of and access to BigPanda’s Autonomous Operations Platform (the “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 these Terms. If you’re using the Services for a business or entity, you represent and warrant that the business or entity accepts these Terms, and that you have authority to bind the business or entity to these Terms.

BigPanda Services

You agree to use the Services in accordance with the Order Form (or similar document) executed by both parties or according to the terms of the applicable trial, evaluation or pilot program. You may use our Services only as permitted in these Terms, and you consent to our Privacy Policy at /privacy-policy, which is incorporated by reference. We grant you a limited, non-exclusive, non-transferable, non-sublicensable, right to access and use the Services solely for your own internal business purposes.

Your Obligations

Restrictions on Use

You will not: (i) sell, resell, transfer, assign, distribute or otherwise commercially exploit or make the Services or any of our technology or content available to any third party in any way or use the Services as a managed service provider; (ii) interfere with or disrupt the integrity or performance of the Services or the data contained therein, including by uploading or otherwise disseminating viruses or other malicious code; (iii) attempt to gain unauthorized access to the Services or its related systems or networks; (iv) copy any ideas, features, functions or graphics of the Services or any content other than for your own internal use; (v) reverse engineer, decompile, disassemble,  or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Services or our technology, (vi) use the Services for any illegal purpose, or in violation of any local, state, national, or international law; (vii) use the Services to violate, or encourage others to violate, the rights of third parties; (viii) import, transmit or collect any of Your Data or other content that is unlawful, defamatory, libelous, or invasive of privacy; or (ix) perform any fraudulent activity, including impersonating any person or entity, claiming false affiliations, or accessing the Service accounts of others without permission.

Responsibilities

You are responsible for all activity occurring under your account, including the actions of all persons who were provided with a username and password by you or for you. You will: (i) notify us immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) not impersonate another BigPanda user or provide false identity information to gain access to or use the Services; (iii) suspend all user accounts for individuals who are no longer authorized to access those accounts; and (iv) generally, comply with any instructions concerning access to or use of the Services that we may give from time to time.

Your Warranties

You represent and warrant that: (1) you have all rights, power, authority, and consents necessary to, and to authorize BigPanda and users of the Services to, collect, use, process, and distribute Your Data (as defined below) as contemplated by these Terms, (2) you will comply with all applicable laws and regulations, and (3) Your Data does not contain Sensitive Information.

Your Data

“Your Data” means any data of yours that is transmitted to or through BigPanda’s technology for the purpose of providing the Services. Your Data does not include aggregated measures of the Services’ performance or metadata associated solely with your use of the Services. You are solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use Your Data, and BigPanda will not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store Your Data. You recognize and agree that: (a) we have no liability for any failure to provide any special protections to sensitive data, including but not limited to, financial account numbers, login credentials, government-issued identification numbers, protected health information as defined under the Health Insurance Portability and Accountability Act of 1996 (HIPAA), nonpublic personal information as defined under the Gramm-Leach-Bliley Act (GLBA), information protected under the Fair Credit Reporting Act, special categories of personal data listed in Article 9 §1 of the EU General Data Protection Regulation, 2016/679, or data that requires compliance with PCI DSS security standards (collectively, “Sensitive Information”), and (b) our technology is not intended for management or protection of Sensitive Information and may not provide adequate or legally required security for Sensitive Information. We store and process Your Data and provide the Services through a third party’s hosting services in the United States. If you or your personnel are in the European Economic Area, or in any other jurisdiction that regulates the transfer of personal information outside that jurisdiction, then you hereby grant us your explicit and unambiguous consent to transfer any personal information contained in Your Data to the United States and Israel for the purposes described in these Terms.

Intellectual Property

Our Intellectual Property

BigPanda retains all right, title and interest, including all related intellectual property rights (including all unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, know-how and other trade secret rights)  in and to the Services, our content, and our technology. Portions of the Services and our technology, including the source code, constitute or contain trade secrets and other intellectual property rights of BigPanda and our licensors. The BigPanda name, BigPanda logo, and the product names associated with the Services are trademarks of BigPanda or third parties, and no right or license is granted to use them. These Terms do not grant you any intellectual property rights in the Services or our technology, and we reserve all rights not expressly granted in these Terms.

License to Your Data

You grant us a worldwide, non-exclusive, royalty-free license to reproduce, distribute, modify, and adapt Your Data solely for the purpose of providing the Services and subject to these Terms. You authorize us to access certain third-party tools that you choose to integrate into the Services, and to store and process data obtained from such tools, solely for us to provide the Services. We will not share Your Data with any third party except to operate the Services or if required by applicable law, rules or regulations.

Confidentiality

Either party may provide the other party with confidential or proprietary materials and information (“Confidential Information”).  All materials and information provided by the disclosing party and identified at the time of disclosure as “Confidential” or bearing a similar legend, and all other information that the receiving party reasonably should know is the Confidential Information of the disclosing party, will be considered Confidential Information. Your Confidential Information includes Your Data; BigPanda’s Confidential Information includes the Services and our technology; and Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party.  The receiving party will maintain the confidentiality of the Confidential Information and will not disclose such information to any third party without the prior written consent of the disclosing party or in accordance with these Terms.  The receiving party will only use the Confidential Information for the purposes contemplated under these Terms.  The obligations in this Section will not apply to any information that: (a) is made generally available to the public without breach of any obligation owed to the disclosing party, (b) is developed by the receiving party independently from and without reference to the Confidential Information, (c) is disclosed to the receiving party by a third party without breach of any obligation owed to the disclosing party, or (d) was in the receiving party’s lawful possession prior to the disclosure and was not obtained by the receiving party either directly or indirectly from the disclosing party.  The receiving party may disclose Confidential Information as required by law or court order; provided that, the receiving party provides the disclosing with prompt written notice thereof and uses its best efforts to limit disclosure.  At any time, upon the disclosing party’s written request, the receiving party will destroy all disclosing party’s Confidential Information in its possession. Except as expressly set forth in these Terms, no license or other rights to Confidential Information are granted or implied hereby by either party.

Termination and Modification

Termination

We may terminate these Terms or suspend or terminate your account or your access to the Services at any time for any reason. We may change, suspend or discontinue, or terminate, restrict or disable your use of or access to parts or all of the Services or their functionality at any time at our sole discretion and without notice. We will endeavor to provide you reasonable notice upon suspending or terminating part or all of the Services. You may terminate these Terms by deactivating your BigPanda account.

Effect of Termination

Upon termination, your access to the Services will be disabled and all of Your Data will be deleted.  Once deleted, this information cannot be recovered. All sections of these Terms that by their nature should survive termination will survive termination, including without limitation Your Data, Our Intellectual Property, Confidentiality, Indemnification, No Warranty, Limitation of Liability, and Miscellaneous.

Modification

We may modify these Terms from time to time, and we will post the most current version on our site. If a modification meaningfully reduces your rights, we’ll notify you directly or display a prominent notice within the Services. By continuing to use or access the Services after any modifications come into effect, you agree to be bound by the modified Terms. If you disagree with our changes, then you must stop using the Services and cancel your account. We reserve the right to enhance, upgrade, improve, or modify features of our Services as we deem appropriate and in our discretion. We will not materially reduce the core functionality or discontinue any Services unless we provide you with prior written notice.

Indemnification

To the maximum extent permitted by law, you agree to indemnify, defend, and hold harmless us and our employees, directors, agents, affiliates and representatives from and against any and all claims, costs, losses, damages, judgments, tax assessments, penalties, interest, and expenses (including without limitation reasonable attorneys’ fees) arising out of any claim, action, audit, investigation, inquiry, or other proceeding instituted by a person or entity that arises out of or relates to: (a) your breach of your representations, warranties, or obligations set forth in these Terms; (b) your wrongful or improper use of the Services; (c) your violation of any third-party right, including without limitation any right of privacy, publicity rights or intellectual property rights; (d) Your Data; and (f) any other party’s access or use of the Services with your username and password.

No Warranties

BIGPANDA DISCLAIMS, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. The Services are provided “as is” and “as available,” AND BIGPANDA DOES NOT WARRANT OR GUARANTEE THAT THE SERVICES ARE ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICES WILL MEET YOUR REQUIREMENTS; THAT THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED, ERROR-FREE, WITHOUT DEFECT OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. BIGPANDA DISCLAIMS ALL RESPONSIBILITY FOR THE AVAILABILITY OR ACTS OR OMISSIONS OF ANY THIRD PARTY, INCLUDING ANY THIRD-PARTY APPLICATION OR PRODUCT.

Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL BIGPANDA BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE, GOOD WILL,  OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF OR RELATED TO THESE TERMS, EVEN IF BIGPANDA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, BIGPANDA’S TOTAL AGGREGATE LIABILITY (WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY) IS LIMITED TO THE GREATER OF (A) THE AMOUNT ACTUALLY PAID BY YOU FOR ACCESS TO AND USE OF THE SERVICES DURING THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY, OR (B) $500.

Miscellaneous

Entire Agreement and Conflict

These Terms constitute the entire agreement between you and BigPanda regarding the subject matter of these Terms and supersede and replace any other prior or contemporaneous agreements, or terms and conditions applicable to the subject matter of these Terms. In the event of a conflict between these Terms and another agreement (such as an Order Form) that has been signed by both you and BigPanda, the agreement signed by both parties will control.

Governing Law and Dispute Resolution

These Terms will be exclusively governed by the laws of the State of California, without regard to conflict of law principles.  Any controversy or claim arising out of or relating to these Terms, their enforcement, arbitrability or interpretation will be submitted to final and binding arbitration, to be held in Santa Clara County, California, before a single arbitrator who will be a retired judge, in accordance with California Code of Civil Procedure §§ 1280 et seq.  The arbitrator will be selected by mutual agreement of the parties or, if the parties cannot agree, then by striking from a list of arbitrators supplied by the American Arbitration Association.  The arbitration will be a confidential proceeding, closed to the general public.  The arbitrator will issue a written opinion stating the essential findings and conclusions upon which the arbitrator’s award is based.  The parties will share equally in payment of the arbitrator’s fees and arbitration expenses and any other costs unique to the arbitration hearing (recognizing that each side bears its own deposition, witness, expert and attorneys’ fees and other expenses to the same extent as if the matter were being heard in court). ANY ARBITRATION UNDER THESE TERMS WILL ONLY BE ON AN INDIVIDUAL BASIS. CLASS ARBITRATIONS, CLASS ACTIONS, REPRESENTATIVE ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED.

Waiver, Severability and Assignment

Our failure or delay to enforce any provision of these Terms is not a waiver of our right to do so later. If any provision of these Terms is found unenforceable, the remaining provisions will remain in full effect and an enforceable term will be substituted reflecting our intent as closely as possible. You may not delegate, transfer or assign these Terms or any of your rights or obligations hereunder without our prior written consent, and any such attempt will be of no effect. We may delegate, transfer or assign these Terms or some or all of our rights and obligations hereunder, in our sole discretion, to any of our affiliates or subsidiaries or to any purchaser of any of our business or assets associated with the Services.

Feedback

You grant us a worldwide, non-exclusive, royalty-free, perpetual, and irrevocable right to use (and full right to sublicense), reproduce, modify, adapt, publish, translate, create derivative works from, distribute, transmit, and display in any form any suggestions, ideas, comments, or questions that you submit to us.

Export

The Services may be subject to export laws and regulations of the United States and other jurisdictions. You represent that you are not named on any U.S. government denied-party list. You will not permit access to or use of the Services in a U.S. embargoed country or in violation of any U.S. export law or regulation.