BY USING PANAYA'S SERVICES, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS (THE "AGREEMENT") GOVERNING YOUR USE OF THE SERVICES. IF YOU ARE AN INDIVIDUAL ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH COMPANY OR OTHER LEGAL ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST ABORT THE SUBSCRIPTION AND MAY NOT USE THE SERVICES.
1. General; Definitions
Panaya provides subscription-based on-demand online Services for testing and impact analysis of Changes made to Systems, as such Services are more fully described at the Panaya official website www.panaya.com (the "Services"). Registration for, or use of, the Services shall be deemed to be Your agreement to abide by this Agreement including any materials available on the Panaya website incorporated by reference herein, including but not limited to Panaya's Privacy and Security Policy.
When used in this Agreement or in any Subscription Orders now or hereafter associated herewith the following terms shall have the following meanings:
"Agreement" means this Master Subscription Agreement, any applicable Subscription Order and any materials available on the Panaya website specifically incorporated by reference herein, as such materials, including the terms of this Agreement, may be updated by Panaya from time to time in its sole discretion;
"Changes" means certain configurations and/or customizations and/or code modifications;
"Content" means the audio and visual information, documents, software, products and Services contained or made available to You in the course of using the Service;
"Contractors" means third party contractors, such as system integrators, that You engage in order to provide You with Services in respect of the Code of Your System, for which You subscribed for the Services;
"Effective Date" means as agreed in the applicable Subscription Order;
"Intellectual Property Rights" means rights in unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights in the broadest meaning of the term, derivatives thereof, and forms of protection of a similar nature anywhere in the world;
"Named User" means a unique user, with a Panaya username and password, that is granted access to the Services;
"Panaya" means Panaya Inc. and its wholly owned subsidiaries;
"Panaya Representative" means a third party authorized by Panaya to sell access and use of the Services;
"Panaya Technology" means all of Panaya's proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to You by Panaya in providing the Service and/or by which Panaya provides the Services;
"Panaya Tools" means the extraction software and any other software or other tools which may be provided to You, from time to time, by Panaya or by the relevant Panaya Representative in order to implement the Service.
"Subscription Order(s)" means the form evidencing the agreed on initial subscription and any subsequent subscription, specifying, among other things, the specific type of Services contracted for, the applicable fees, the billing period, and other terms as agreed to between the parties. Each such Subscription Order is incorporated into and to becomes a part of this Agreement (in the event of any conflict between the terms of this Agreement and the terms of any such Subscription Order, the terms of this Agreement shall prevail);
"Services" means the specific Panaya Service(s) to which You subscribed under the applicable Subscription Order.
"System" means a unique landscape implemented as a single SAP® installation or Oracle E-Business Suite installation and for which Services are subscribed for.
2. Grant of Access; Restrictions
2.1. For the duration specified in the Subscription Order Panaya grants You a limited, non-exclusive, non-transferable access to use the Services, solely for Your own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted herein are reserved by Panaya.
2.2. The access is granted per System for impact analysis Services and/or Named User for testing Services, is limited to the subscription period. Panaya or Panaya Representative shall provide You with a unique username and access password. Your username and access password may not be shared or transferred to any person or entity and allow only You the right to use the Services with respect to Your System and not to any third party System.
2.3. With respect to the Services, Panaya Technology and Panaya Tools You shall not: (i) sell, resell, transfer, assign, distribute or otherwise commercially exploit or make it available to any third party in any way (except that You may allow Your Contractors to access the Services as required in order to perform their obligations towards You in respect of Your System); (ii) knowingly send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs or upload, post, promote or transmit any unlawful, harassing, libelous, abusive, harmful or otherwise objectionable material of any kind or nature; (iii) interfere with or disrupt the integrity or performance of the Services or the data contained therein; (iv) attempt to gain unauthorized access to the Services or its related systems or networks; (v) copy any ideas, features, functions or graphics of the Services or any Content other than for Your own internal use: or (vi) reverse engineer, decompile, or disassemble the Panaya Tools and/or Panaya Technology, except as expressly permitted by applicable mandatory law which cannot be superseded.
3.1. You shall be 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 (including, without limitation, Contractors), and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with Your use of the Services, including those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) notify Panaya immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) not impersonate another Panaya 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) comply with any instructions concerning access to and/or use of the Services that Panaya may give from time to time.
3.2. You shall indemnify Panaya and its officers, directors, agents, and employees, and hold them harmless against all claims, liabilities damages and expenses (including reasonable attorney's fees) arising out of: (i) claims of third parties based on or related to You or Your Contractors breach of any undertakings or representations herein or any of Your actions or omissions with respect to the performance of this Agreement, (ii) claims by any of Your Contractors in connection with the Services, and (iii) claim alleging that use of the Customer Data infringes or misappropriates the rights of, or has caused harm to, any third party.
3.3. Panaya shall defend, indemnify and hold You harmless against any loss or damage (including reasonable attorneys' fees) incurred in connection with claims, demands, suits, or proceedings ("Claims") made or brought against You by a third party alleging that the use of the Panaya Services as contemplated hereunder infringes any copyright or trade secret rights of a third party. In the event that the Panaya Services or any part thereof are likely to or do become the subject of an infringement related Claim, and Panaya cannot, at its option and expense, procure for You the right to continue using the Panaya Services, or any part thereof, or modify the Panaya Services, or any part thereof, to make them non infringing, then Panaya has the right to terminate this Agreement and upon such termination will refund to You all fees paid to Panaya for the services that cannot be used by You due to the infringement.
4. Customer Data
4.1 You acknowledge that in order to allow Panaya to provide the Services, You shall be required to provide Panaya with Your custom code of the applicable System for which the Services are to be provided, and Panaya will store certain data used for Panaya's testing Services (collectively, "Customer Data"). Panaya does not own any Customer Data, information or material that You will submit to Panaya or that Panaya may store in the course of using the Services.
4.2 Panaya will not share, publish, post, sell or otherwise transfer the Customer Data to any third party. Panaya will not sell, rent or lease any personally identifiable information included therein to third parties, without receiving Your prior explicit consent, except in any of the following instances:
a. To operate the Services, including storing and processing Customer Data through third party hosting services;
b. If You have breached this Agreement, abused Your rights to access or use the Services or performed any act or omission that Panaya believes to be violating any applicable law, rules, or regulations, Panaya may share Your information with law enforcement agencies and other government authorities as well as with other third parties, as may be required;
c. If Panaya is required by applicable law, rules or regulations to do so;
d. If Panaya organizes the operation of the Services within a different framework, or through another legal structure or entity, or if Panaya is acquired by, or merged with another entity, provided however, that those entities agree to be bound by the provisions of this Agreement, with respective changes taken into consideration;
4.3 You and Your Contractors shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and Panaya shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. Panaya may, however, utilize Customer Data to anonymously aggregate, publish or otherwise make known performance benchmarks or other data metrics about the use of the Services. You agree that Panaya has no obligation to retain any Customer Data provided to Panaya, except as necessary for the provision of the Services.
5. IP Ownership and Confidentiality
5.1 Panaya alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights in and to the Services, the Content and the Panaya Technology and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by You or any other party relating to the Services. Panaya's name, Panaya's logo, and the product names associated with the Services are trademarks of Panaya or third parties, and no right or license is granted to use them.
5.2 The Panaya Technology shall be used by You, solely for the limited purposes of the Service.
5.3.You hereby acknowledge that the Panaya Technology is highly confidential, and undertake that, at all times, You: (i) shall treat and maintain the Panaya Technology as confidential, and hold all such Panaya Technology in trust and in strict confidence, utilizing the same degree of care You use to protect Your own confidential information, but in no event less than a reasonable degree of care; (ii) shall not disclose the Panaya Technology to any third party, whether or not for consideration; and (iii) exploit the Panaya Technology for the benefit of anyone else, without the prior written consent of Panaya.
6. Privacy & Security
6.1 Panaya and third parties on its behalf implement information security tools and procedures to secure the Customer Data. These tools include protection such as encryption for communication and user authentication to prevent unauthorized user access or other malicious activities. In addition, Panaya limits access to its databases, keeping a clear separation between the off-line servers where Your Customer Data is analyzed, and the on-line, on-demand servers where processed impact analysis results are stored. While such tools and procedures reduce the risk of security breaches, they do not provide absolute security, and Panaya cannot guarantee that the Services will be immune from any unlawful interceptions or unauthorized access.
6.2 Panaya stores and processes the Customer Data through a third party hosting service in the USA or in Europe. You shall notify Panaya in advance where You would like Panaya to store and process the Customer Data. If You 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 Panaya Your explicit and unambiguous consent to transfer any personal information contained in Your Code to the USA or Europe, for the purposes described in this policy.
6.3 In addition, information submitted by You when accessing Panaya's website shall at all times be subject to Panaya's Privacy & Security Policy which may be viewed at the Panaya official website and which Panaya reserves the right to modify in its discretion from time to time.
7. Charges and Payment of Fees
7.1. You shall pay any and all applicable fees or charges to Your account in accordance with the terms in effect at the time a fee or charge are due and payable. All charges committed by You in a signed Subscription Order will be fixed for the terms specified in such Subscription Order. All pricing terms are confidential, and You agree not to disclose them to any third party. All payment obligations are non-cancelable and all amounts paid are non-refundable whether or not such Services are actively used. Panaya's fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and You shall be responsible for payment of all such taxes, levies, or duties, excluding only taxes based solely on Panaya's net income.
7.2. You may add additional Services by executing additional written Subscription Orders and paying the additional fees. Except as may be otherwise specifically agreed on in the additional Subscription Order(s), added Services will be subject to the following: (i) added Service will be coterminous with the then preexisting billing period with respect to then existing Services; (ii) the fee for the added Services will be the then current, generally applicable Service fee; and (iii) Services added in the middle of a billing period will be charged a pro rata fee for that billing period.
7.3. Panaya will automatically renew and issue an invoice to You for any applicable billing period as mutually agreed upon.
7.4. You agree to provide Panaya with complete and accurate billing and contact information as shall be requested by Panaya. You agree to update this information within 30 days of any change to it. If the contact information You have provided is false or fraudulent, Panaya reserves the right to terminate Your access to the Service in addition to any other legal remedies. If You believe Your bill is incorrect, You must contact Panaya in writing within 7 days after receiving the invoice or within 30 days of the invoice date, whichever is earlier, regarding the invoice containing the amount in question to be eligible to receive an adjustment or credit. In any event, You must pay the undisputed amount based on the payment terms that were agreed on with Panaya.
8. Term and Termination
Each party may terminate this Agreement or some or all of any Subscription Order(s), for convenience, by providing a 30-day prior written notice, provided that in case Panaya terminated for convenience, Panaya shall provide You with a refund of a pro-rata amount of the Service fees paid by You with respect to the then current billing period, as proportionate to the period remaining from the date of termination to the end of such billing period. However, any breach of Your payment obligations, unauthorized use of the Service or other failure by You to comply with the terms of this Agreement will be deemed a material breach of this Agreement and will entitle Panaya, without derogating from any other remedies available to it, to immediately suspend or terminate this Agreement or any Subscription Order with no liability or refund to You. Termination of this Agreement or a Subscription Order shall be without prejudice to the survival of provisions in this Agreement which by their nature survive termination.
9. Disclaimer of Warranties
THE SERVICES, THE PANAYA TOOLS AND THE CONTENT ARE PROVIDED TO YOU STRICTLY ON AN "AS IS" BASIS.
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 OF THIRD PARTY RIGHTS IN RELATION TO THE SERVICE, THE PANAYA TOOLS OR THE CONTENT, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY PANAYA (INCLUDING ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, SUCCESSORS OR ASSIGNEES) AND ITS LICENSORS. WITHOUT DEROGATING FROM THE AFORESAID, PANAYA AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES, THE PANAYA TOOLS OR ANY CONTENT. PANAYA (INCLUDING ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, SUCCESSORS OR ASSIGNEES) AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICES OR THE PANAYA TOOLS WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICES AND THE PANAYA TOOLS AND/OR THEIR QUALITY WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY CONTENT WILL BE ACCURATE OR RELIABLE, (D) ERRORS OR DEFECTS WILL BE CORRECTED, OR (E) THE SERVICES, THE PANAYA TOOLS OR THE SERVER(S) THAT MAKE THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
10. Internet Delays
THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS.
PANAYA IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
11. Limitation of Liability
11.1. IN NO EVENT SHALL PANAYA'S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY YOU FOR THE BILLING PERIOD DURING WHICH THE EVENT GIVING RISE TO SUCH CLAIM OCCURRED. IN NO EVENT SHALL PANAYA BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, EVEN IF PANAYA HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.2. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to You.
Panaya may give You notice by means of a general notice on the Services, electronic mail to Your e-mail address on record in Panaya's account information, or by written communication sent by first class mail or pre-paid post to Your address on record in Panaya's account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to Panaya (such notice shall be deemed given when received by Panaya) at any time via Panaya's contact details as appear at the Panaya official website, addressed to the attention of: Chief Financial Officer.
This Agreement shall be exclusively governed by the laws of the State of Delaware, USA, without regard to the choice or conflicts of law provisions thereof, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the courts of Delaware, USA. No text or information set forth on any other purchase order, preprinted form or document (other than a Subscription Order, if applicable and where expressly stated that it amends or deviates from the terms of this Agreement) shall add to or vary the terms and conditions of this Agreement. This Agreement, together with any applicable Subscription Order, comprises the entire Agreement between the parties and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision, with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between the parties as a result of this Agreement or use of the Service. The failure of Panaya to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Panaya in writing. This Agreement may not be assigned by You without the prior written approval of Panaya and any assignment without such prior written consent shall be void.
Last Update: March 16, 2014 (AZ)