Effective: August 31, 2014
Last Updated August 26, 2016
PLEASE READ THE FOLLOWING AGREEMENT TERMS AND CONDITIONS (THE “AGREEMENT”) CAREFULLY BEFORE ACCESSING AND USING THE SERVICES (DEFINED BELOW), WHICH ARE ACCESSIBLE AT http://www.bigpanda.io/ BECAUSE THIS AGREEMENT GOVERNS USE OF THE SERVICES PROVIDED BY BIGPANDA (“BIGPANDA”) TO YOU (“YOU” OR CUSTOMER”)
BigPanda is willing to provide the Services to you as a Customer, only upon the condition that you accept all the terms contained in this Agreement. By creating an account, or by accessing or using the Services, you have indicated that you understand this Agreement and accept all of its terms. If you are accepting the terms of this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to the terms of this Agreement, and, in such event, the terms “Customer”, “you” and “your” will refer to that company or other legal entity. If you do not accept all of the terms of this Agreement, then you must not accept this Agreement and you may not use the Services.
1.1 “Authorized User” means an employee or contractor of Customer who has (a) registered to access and use the Services and (b) been assigned a unique username-password combination to access and use the Services.
1.2 “Customer Data” means all data and information input or submitted by Customer or Authorized Users to the Services, including without limitation, the alerts, log files and other data from Third Party Services, that we access with Customer’s permission, leveraging the functionality of the Services.
1.3 “Customer Marks” means Customer’s name, trademarks, and logos, which are used to identify Customer and its business.
1.4 “Fees” means the fees that the Customer is required to pay to BigPanda for accessing and using the Services.
1.5 “Intellectual Property Rights” any intellectual property in any jurisdiction throughout the world, including any (i) trademarks, service marks, Internet domain names, logos, trade dress, trade names, and any other indicia of source, and all goodwill associated therewith and symbolized thereby; (ii) patents, patent applications and patent disclosures, and inventions and discoveries (whether patentable or unpatentable); (iii) processes, technologies, trade secrets, and know-how; (iv) copyrights and copyrightable works, moral rights, and mask works; (v) software and software systems (including data, source code, object code, databases and related items such as documentation); and (vi) registrations and applications for any of the foregoing.
1.6 “Order Form” means an ordering document specifying the Services and corresponding Fees, that is entered into between you and BigPanda, which references this Agreement and is incorporated herein by reference.
1.7 “Services” means the interactive platform and IT incident management solution provided by BigPanda to Customer under this Agreement.
1.8 “Services Report Data” means all data and information relating to communications from the Third Party Services to Customer, which is extracted by BigPanda from the Third Party Services and correlated into a consolidated data report for Customer, via the Services.
1.9 “Software” means any software provided by BigPanda to Customer, for use by Customer in order to access and use certain features of the Services.
1.10 “Third Party Services” means those third party services, selected by Customer via the functionality of the Services for which Customer wishes to receive consolidated reports of communications from such third party services, via the Services.
2.1 The Services. Subject to Customer’s compliance with the terms and conditions of this Agreement, BigPanda will make the Services available, during the Term (defined below), toCustomer and Authorized Users who may access and use the Services solely for Customer’s internal business purposes. The number of Authorized Users who are permitted to access and use the Services will be as set forth in your Order Form. Customer may increase the number of Authorized Users at any time during the Term by making a written request to BigPanda and upon approval in writing by BigPanda, the number of Authorized Users will be increased, and the pricing adjusted, for the remainder of the then current Term and any Renewal Terms. Customer and Authorized Users may access the Services at any time by logging into Customer’s Services account using their secure login credentials. After the initial log in, Customer will select the Third Party Services from the list of third party services presented via the Services, and will follow the instructions provided by BigPanda to allow BigPanda to have access to Customer’s instance of those Third Party Services, in order to provide the Services.
2.2 Software License. Customer may be prompted to download Software when using certain features of the Services and subject to Customer’s compliance with the terms and conditions of this Agreement, BigPanda grants you a non-exclusive, non-transferable and non-sublicensable license for the Term and for the number of Authorized Users set forth in the Order Form, to download and use the Software in object code form only, for the sole purposes of accessing and using the applicable feature of the Services and for no other purpose. Customer may make a single copy of the Software for backup purposes, provided that Customer reproduce on it all copyright and other proprietary notices that are on the original copy of the Software. BigPanda reserves all rights in the Software not expressly granted to Customer in this Agreement.
2.3 Restrictions. Neither Customer nor its Authorized Users will attempt to interfere with or disrupt the Services or Software or attempt to gain access to any systems or networks that connect thereto (except as required to access and use the Services). Customer will not allow access to or use of the Services by anyone other than Authorized Users. Customer and its Authorized Users will not and will not permit: (a) the copying, modification or distribution of any portion of the Services or Software; (b) the renting, leasing, or providing access to the Services on a time-share or service bureau basis; (c) the transferring of any of Customer or Authorized Users’ rights hereunder; (iv) reverse engineering, disassembly, or decompilation of the Software, or otherwise attempting to derive the source code of the Software; or (v) repackaging, redistribution or sale of the Software as an OEM product.
2.4 Data Maintenance and Backup Procedures. In the event of any loss or corruption of Customer Data or Services Report Data, BigPanda will use its commercially reasonable efforts to restore the lost or corrupted Customer Data or Services Report Data from the latest backup of such Customer Data or Services Report Data maintained in accordance with BigPanda’s archival procedure. BigPanda will not be responsible for any loss, destruction, alteration, unauthorized disclosure or corruption of Customer Data or Services Report Data caused by any third party. BIGPANDA’S EFFORTS TO RESTORE LOST OR CORRUPTED CUSTOMER DATA AND SERVICES REPORT DATA PURSUANT TO THIS SECTION 2.4 WILL CONSTITUTE BIGPANDA’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS OR CORRUPTION OF CUSTOMER DATA OR SERVICES REPORT DATA.
3.1 Cooperation and Assistance. As a condition to BigPanda’s obligations hereunder, Customer and its Authorized Users will at all times: (a) provide BigPanda with good faith cooperation and assistance and make available such information, facilities, personnel, equipment and access to the relevant third party services as may be reasonably required by BigPanda in order to provide the Services, including, but not limited to, providing Customer Data, security access, information, and software interfaces to Customer’s business applications; and (b) carry out in a timely manner all other Customer responsibilities set forth in this Agreement.
3.2 Telecommunications and Internet Services. Customer acknowledges and agrees that its use of the Services is dependent upon access to telecommunications and Internet services. Customer is solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access and use the Services, including, without limitation, any and all costs, fees, expenses, and taxes of any kind related to the foregoing. BigPanda will not be responsible for any loss or corruption of data, lost communications, or any other loss.
3.3 Enforcement. Customer will ensure that all its Authorized Users comply with the terms and conditions of this Agreement. Customer will promptly notify BigPanda of any suspected or alleged violation of the terms and conditions of this Agreement and will cooperate with BigPanda with respect to: (a) investigation by BigPanda of any suspected or alleged violation of this Agreement and (b) any action by BigPanda to enforce the terms and conditions of this Agreement. BigPanda may, in its sole discretion, suspend or terminate any Authorized User’s and/or Customer’s access to the Services upon notice to Customer in the event that BigPanda reasonably determines that such Authorized User has violated the terms and conditions of this Agreement or any other agreement between BigPanda and such Authorized User pursuant to which such Authorized User is permitted to access and use the Services. Customer will at all times be responsible for all actions taken under an Authorized User’s account, whether such action was taken by an Authorized User or by another party, and whether such action was authorized by an Authorized User. Customer will be liable for any violation of the terms and conditions of this Agreement by any Authorized User, as if such violation was due to an act or omission of Customer.
3.4 Marketing Support. Customer will comply with reasonable requests of BigPanda to support public relations efforts pertaining to the Services, which efforts may include: (a) a press release highlighting Customer’s purchase or use of the Services; (b) participation in targeted press and analyst interviews highlighting benefits of implementing the Services; and (c) participation in customer case studies developed by BigPanda and used on the BigPanda websites and other collateral, provided however that BigPanda will not engage in any of the activities described in this Section 3.4 (a), (b) and (c) without Customer’s prior written approval, which will be timely given and not unreasonably withheld. Customer grants to BigPanda a non-exclusive, limited right to use the Customer Marks on BigPanda’s websites and in the production of marketing materials. All goodwill developed from such use will be solely for the benefit of Customer.
3.5 Representations and Warranties. Customer represents and warrants to BigPanda that it has all rights, permissions, power and authority that are necessary to (a) enter into this Agreement; (b) provide Customer Data to BigPanda via the Services, as contemplated by this Agreement; (c) provide BigPanda with access to Customer’s usage of the Third Party Services to enable BigPanda to provide the Services to Customer. In addition, Customer represents and warrants to BigPanda that Customer’s use of the Services does not and will not breach any agreement between Customer and any third party or violate any applicable local, state or federal laws, regulations, orders or rules.
The Fees will be as set forth in the Order Form. All Fees are due and payable in advance and Customer agrees to pay and will pay the applicable Fees on or before the Effective Date and thereafter on the twelve (12) month anniversary of the Effective Date during the Term. BigPanda may charge proportionate additional Fees in the event that Customer increases the number of Authorized Users during the Term.
5.1 Ownership of Services. As between BigPanda and Customer, the Services and Software, and all Intellectual Property Rights therein or relating thereto, are and will remain the exclusive property of BigPanda or its licensors.
5.2 Ownership of Customer Data and Services Report Data. BigPanda acknowledges that, as between Customer and BigPanda, Customer owns all worldwide right, title and interest in and to all Customer Data and Services Report Data, and BigPanda will not obtain any ownership rights or interests in such data. Customer hereby grants to BigPanda a non-exclusive license to use, reproduce, distribute copies of, and make available the Customer Data only as is necessary to provide the Services.
5.3 Feedback. If Customer elects to provide BigPanda any suggestions, comments, ideas or other feedback related to the Services or otherwise (“Feedback”), then BigPanda will own all right, title and interest in and to such Feedback, even if Customer designates such Feedback as confidential. BigPanda understands and agrees that any Feedback is provided by Customer on an “as is” basis without any warranties of any kind. Customer hereby irrevocably assigns to BigPanda all right, title and interest in such Feedback and agrees to provide BigPanda any assistance it may reasonably require to document, perfect and maintain its rights in and to such Feedback.
6.1 Definition. “Confidential Information” means any business or technical information disclosed by one party to the other party that: (a) if disclosed in writing, is marked “confidential” or “proprietary” at the time of disclosure; (b) if disclosed orally, is identified as “confidential” or “proprietary” at the time of disclosure, and is summarized in a writing sent by the disclosing party to the receiving party within thirty (30) days after any such disclosure; or (c) under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary. For clarity, all Intellectual Property Rights related to the Services (except those excluded in accordance with Section 6.2 below) are the Confidential Information of BigPanda and Customer Data is considered to be Confidential Information of Customer.
6.2 Exclusions. The obligations and restrictions set forth in Section 6.3 will not apply to any information that: (a) is or becomes generally known to the public through no fault of or breach of this Agreement by the receiving party; (b) is rightfully known by the receiving party at the time of disclosure; (c) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information; or (d) the receiving party rightfully obtains from a third party who has the right to disclose such information without breach of any confidentiality obligation to the disclosing party.
6.3 Use and Nondisclosure. A receiving party will not use the disclosing party’s Confidential Information except as necessary for the performance or enforcement of this Agreement and will not disclose such Confidential Information to any third party except to those of its employees and subcontractors who have a bona fide need to know such Confidential Information for the performance or enforcement of this Agreement; provided that each such employee and subcontractor is bound by a written agreement that contains use and disclosure restrictions consistent with the terms set forth in this Section. Each receiving party will protect the disclosing party’s Confidential Information from unauthorized use and disclosure using efforts equivalent to the efforts that the receiving party ordinarily uses with respect to its own confidential information and in no event less than a reasonable standard of care.
6.4 Permitted Disclosures. The provisions of this Section 6 will not restrict either party from disclosing Confidential Information pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided that the party required to make such a disclosure gives reasonable notice to the other party to enable it to contest such order or requirement or limit the scope of such request. The party responding to such an order or requirement will only disclose that information that is expressly required.
THE SERVICES AND SOFTWARE ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. BIGPANDA MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT, THE SERVICES OR THE SOFTWARE. IT IS CUSTOMER’S RESPONSIBILITY TO EXERCISE DILIGENCE AND USE ITS JUDGMENT IN RELYING ON THE SERVICES AND THE SERVICES DATA REPORTS AND IN PARTICULAR FROM ACTIONS TAKEN OR NOT TAKEN AND CONCLUSIONS DRAWN AFTER REVIEW OF THE SERVICES DATA REPORTS. WITHOUT LIMITING THE FOREGOING, BIGPANDA DISCLAIMS ANY WARRANTY THAT THE SERVICES OR SOFTWARE WILL BE ERROR FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED. BIGPANDA FURTHER DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE SERVICES AND SOFTWARE AS TO MERCHANTABILITY, ACCURACY OF ANY INFORMATION PROVIDED, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT AND WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM BIGPANDA OR ELSEWHERE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, SOME OF THE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY.
8.1 BigPanda Indemnity. BigPanda will defend any suit or action brought against Customer to the extent that it is based upon a third party claim that the Services or Software, as provided by BigPanda to Customer pursuant to this Agreement, infringe any U.S. copyright or misappropriates any trade secret of any third party, and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded in final judgment against or paid in settlement by Customer. BigPanda’s obligations under this Section 8.1 are contingent upon: (a) Customer providing BigPanda with prompt written notice of such claim; (b) Customer providing reasonable cooperation to BigPanda, at BigPanda’s expense, in the defense and settlement of such claim; and (c) BigPanda having sole authority to defend or settle such claim. THE PROVISIONS OF THIS SECTION 8.1 SET FORTH BIGPANDA’S SOLE AND EXCLUSIVE OBLIGATIONS, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.
8.2 Customer Indemnity. Customer will defend, indemnify and hold BigPanda harmless from and against any damages, costs and expenses (including reasonable attorneys’ fees and other professional fees) incurred by or imposed upon BigPanda in connection with a third party claim based on or arising out of Customer’s use of the Services. Customer’s obligations under this Section 8.2 are contingent upon: (a) BigPanda providing Customer with prompt written notice of such claim; (b) BigPanda providing reasonable cooperation to Customer, at Customer’s expense, in the defense and settlement of such claim; and (c) Customer having sole authority to defend or settle such claim.
9.1 Term. This Agreement will commence on the date on which Customer accepts this Agreement and, unless terminated earlier by either party in accordance with the terms of this Agreement, will continue for the term specified in the applicable Order Form (“Initial Term”). Thereafter, the Agreement will renew automatically for additional twelve (12) month periods (“Renewal Term”) unless one party notifies the other in writing at least thirty (30) days in advance of the end of the then current term of its intention not to renew. The Initial Term and Renewal Term are referred to collectively as the “Term”.
9.2 Termination for Cause. Either party may terminate this Agreement upon written notice if the other party materially breaches this Agreement and fails to correct the breach within thirty (30) days following written notice specifying the breach.
9.3 Rights and Obligations Upon Expiration or Termination. Upon expiration or termination of this Agreement, Customer’s and its Authorized Users’ right to access and use the Services will immediately terminate, Customer and its Authorized Users will immediately cease all use of the Services, and each party will return and make no further use of any Confidential Information, materials, or other items (and all copies thereof) belonging to the other party. BigPanda may destroy or otherwise dispose of any Customer Data and Services Report Data in its possession unless BigPanda receives, no later than ten (10) days after the effective date of the expiration or termination of this Agreement, a written request for the delivery to Customer of the then-most recent back-up of the Customer Data and Services Report Data. BigPanda will use all reasonable efforts to deliver the back-up to Customer within thirty (30) days of its receipt of such a written request. Customer will pay all reasonable expenses incurred by BigPanda in returning Customer Data and Services Report Data to Customer. Also upon expiration or termination of this Agreement, BigPanda will cease use of the Customer Marks; provided, however, that (a) BigPanda will have a reasonable time to remove the Customer Marks from promotional materials, (b) BigPanda will be entitled to exhaust materials printed during the term that include the Customer Marks, and (c) BigPanda will not be required to remove any such printed materials from circulation.
9.4 Survival. The rights and obligations of BigPanda and Customer contained in Sections 1, 2.3, 5, 6, 7, 8, 9.3, 9.4, 10 and 11 will survive any expiration or termination of this Agreement.
IN NO EVENT WILL BIGPANDA BE LIABLE TO CUSTOMER FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR OTHER ECONOMIC LOSS, WHETHER OR NOT BIGPANDA OR CUSTOMER HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE. Notwithstanding any other provisions of this Agreement, in no event will BigPanda’s aggregate liability to Customer and any Third party in connection with this Agreement OR CUSTOMER’S or authorized users’ ACCESS TO AND USE OF THE SERVICES exceed THE AMOUNTS PAID BY CUSTOMER TO BIGPANDA IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY.
11.1 Governing Law. This Agreement and all matters arising out of or relating to this Agreement will be governed by the laws of the State of California, without regard to its conflict of law provisions. Any legal action or proceeding relating to this Agreement will be brought exclusively in the state or federal courts located in the Northern District of California. BigPanda and Customer hereby agree to submit to the jurisdiction of, and agree that venue is proper in, those courts in any such legal action or proceeding.
11.2 Waiver; Severability. The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach. In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect.
11.3 Notices. All notices, including notices of address change, required to be sent hereunder will be in writing and will be sent to the addresses set forth on the Order Form. The notices will be deemed to have been given upon: (a) the date actually delivered in person; (b) the day after the date sent by overnight courier; or (c) three (3) days following the date such notice was mailed by first class mail. Notices may be confirmed by email or fax.
11.4 Force Majeure. Neither party will be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of events beyond the reasonable control of such party, which may include without limitation denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing party will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.
11.5 Compliance with Laws. Each party agrees to comply with all applicable laws and regulations with respect to its activities hereunder, including, but not limited to, any export laws and regulations of the United States.
11.6 Relationship Between the Parties. Nothing in this Agreement will be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent.
11.7 Assignment. Customer may not assign or transfer this Agreement, in whole or in part, without BigPanda’s prior written consent. BigPanda may freely assign or transfer this Agreement, in whole or in part, by operation of law or otherwise. Any attempted assignment or transfer in violation of this Section will be null and void. Subject to the foregoing restrictions, this Agreement will inure to the benefit of the successors and permitted assigns of the parties.
11.8 Entire Agreement. This Agreement, including the Order Form, constitutes the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of this Agreement.
11.9 Amendment. BigPanda may modify and update the terms of this Agreement at any time upon appropriate notification to you. In addition, BigPanda will post the most current version of this Agreement on BigPanda’s website or the Service. If you or your Authorized Users continue to use the Services after we have notified you and posted the modified Agreement on BigPanda’s website, you are indicating to us that you agree to be bound by the modified Agreement.
11.10 Counterparts; Headings. This Agreement may be executed in counterparts, each of which will constitute an original, and all of which will constitute one and the same instrument. The headings in this Agreement are for the convenience of reference only and have no legal effect.
If you have any questions regarding this Agreement, you may contact BigPanda at firstname.lastname@example.org