Master Subscription Agreement​

[Last updated: August, 2022]

 

This Master Service Agreement (“MSA”) together with the Subscription Order and the Data Protection Agreement (“DPA”) (collectively shall be referred to as “Agreement”) forms a legally binding and enforceable agreement between Panaya and customer, a legal entity or an individual entering this Agreement on behalf of and under the authorization of the legal entity (“Customer). If the Customer is entering into this agreement on behalf of a company or other legal entity, the Customer represents that the Customer has the authority to bind such entity to the terms and conditions of this Agreement. If the Customer does not have such authority the Customer shall not enter this Agreement.

THIS MAS IS EFFECTIVE AS OF THE DATE THE CUSTOMER ACCEPTS THE SUBSCRIPTION ORDER (“EFFECTIVE DATE“).

The Customer and Panaya shall each be referred to as “party” and collectively as “parties”.

  1. DEFINITIONS

1.1. “Authorized User” means Customer’s employees, consultants, contractors, and agents who are authorized by the Customer to access and use the Panaya System and the Services under the Agreement. Except as expressly stated herein and for the purpose of this Agreement, “Customer” shall mean “Customer and its Authorized Users”.

1.2. “Confidential Information” means all nonpublic information, in whatever form disclosed, provided by or on behalf of either party (“Disclosing Party“) to the other party (“Receiving Party“), that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, can reasonably be understood to be confidential, including, without limitation the Panaya Technology. The Confidential Information shall not include information which (a) is at the time of disclosure or subsequently becomes generally available to the public, other than as a result of a breach of the Agreement by the Receiving Party; (b) was previously in the possession of the Receiving Party prior to its disclosure hereunder; (c) is independently developed by the Receiving Party without reliance on, use of or reference to the Confidential Information and without any breach of the terms of the Agreement; (d) was lawfully received by the Receiving Party from a third party having rights to disclose, and under no confidentiality obligations with respect to, such Confidential Information. Notwithstanding anything in this Agreement, a Receiving Party and its representatives may disclose Confidential Information of a Disclosing Party without liability under this Agreement to the extent such Confidential Information is compelled or required to be disclosed by law, regulation, or judicial or legal process, and to the extent requested by a regulator of Receiving Party or any of its Representatives. A receiving Party so compelled shall to the extent legally permissible provide disclosing Party with prompt notice of such compelled disclosure.

1.3. “Customer Data” means all data, information and other content of any type and in any format, including an attachment as document or as URL provided by the Customer to Panaya or uploaded by the Customer to Panaya System in order to be provided with the Services. Customer Data may include, where applicable, Personal Data (as defined under applicable data protection regulation and the DPA).

1.4. “Customer System” means a unique landscape used by Customer and implemented as a single SAP® landscape or Oracle E-Business Suite® landscape or SalesForce.com Org or any other ERP/CRM system and for which Services are subscribed for.

1.5. “Deliverables” means any insights analysis objects of the Customer System, including visual information, documents, data, analysis, and reports being the output of the Service. The term “Deliverables” does not include the Panaya Technology;

1.6. “Documentations” means set of digital or printed technical user manuals, notes, instruction, summary and any other supporting documentation provided by Panaya to the Customer.

1.7. “Intellectual Property” means all intellectual property rights of every kind and description, including without limitation: (i) rights in or to trademarks and service marks (whether or not registered), trade names, logos, and other designations of the source of origin, together with all goodwill related to the foregoing, (ii) patents and patent applications, (iii) rights in or to copyrights, whether or not registered, (iv) rights in or to trade secrets and confidential information, including without limitation know-how, technology methods, ideas, and inventions, (v) rights in the software and computer code (whether in source code, object code or any other form) and (vi) all applications and registrations of any of the foregoing;

1.8. “Panaya” means the Panaya entity appearing in the Subscription Order;

1.9. “Panaya Technology” means all of Panaya’s proprietary technology (including, but not limited to, software, plug-ins, features, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs, and other tangible or intangible technical material or information), and all Intellectual Property rights associated therewith, utilized by Panaya including the Recording Feature if applicable;

1.10. “Panaya System” means Panaya’s software-as-a-service cloud base application delivery and testing solutions. the Panaya System shall include the Panaya Technology.

1.11. “Recorded Data” means all actions recorded by the Recording Feature.

1.12. “Professional Services” means, collectively, the consulting or training delivered by Panaya to the Customer under the Subscription Order and during the Subscription Term.

1.13. “Recording Feature” means a feature that allows Customer to record all actions performed or data displayed on the stations on which the feature was activated.

1.14. “Subscription Order(s)” means the proposal or subscription order form signed and executed by the parties. The MSA may govern various Subscription Order(s).

  1. SCOPE OF SERVICES

2.1. Panaya provides subscription-based on-demand online services for testing and impact analysis of changes made to the Customer Systems, as detailed and agreed between the parties within the applicable Subscription Order (“Service(s)”). Subject to the terms herein, Panaya hereby grants the Customer a limited, revocable, non-exclusive, non-transferable and non-sublicensable license to access and use the Panaya System and the Services during the Subscription Term solely for the purpose set forth herein.

2.2. Panaya reserves the right to modify, change, update, enhance, improve, remove, replace, add or make any other changes to, or discontinue, or cease, temporarily or permanently, the Panaya System or any part and content (such as infrastructure, security, technical configurations, etc.), provided however, that such modification will not result in a material reduction in the level of performance or availability of the applicable Services provided to the Customer for the duration of the Subscription Term, unless Panaya provides the Customer with appropriate notice. Notwithstanding the above, the Customer is required to accept all patches, bug fixes, updates, maintenance and service packs (collectively, “Patches”) necessary for the proper function and security of the Services, as such Patches are generally released by Panaya from time to time.

2.3. If applicable, Panaya may make available to Customer certain other features or services for trial during the Subscription Term (“Trial Services”). Trial Services will be presented to Customer on an “as is” and “as available” basis, and Panaya will not provide technical or other support or offer any warranties regarding such Trial Services.

2.4. Customer will be provided with certain number of Authorized Users, as agreed in the Subscription Order, which are assigned to the Customer online account and dashboard ( “Account”). Except as otherwise agreed to in writing, the total number of Authorized Users will not exceed the number outlined in the Subscription Order.

2.5. It is hereby agreed that Panaya is not responsible for any harm caused by Customer’s Authorized Users, including individuals who were not authorized to have access to the Panaya System but who were able to gain access because usernames, passwords or accounts were disclosed. The Customer is responsible for all activities that occur under the Customer and the Customer’s Authorized Users’ usernames, passwords or Accounts or as a result of the Customer or the Customer’s Authorized Users’ access to the Panaya System and Services, and agree to notify Panay promptly of any unauthorized use. .

2.6. The Customer shall not, and shall not allow others, including the Authorized Users, directly or indirectly, to: (i) interfere, attempt to interfere with, compromise Panaya Technology integrity or security or decipher any transmissions to or from the servers and codes running the Panaya System; (ii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Panaya System in whole or in part; (iii) run, transfer or upload invalid data, viruses, worms, malicious code or other software agents through the use of the Panaya System; (iv) bypass the measures Panaya may use to prevent or restrict access to the Panaya System; (v) use the Panaya System for any illegal, immoral, or unauthorized purpose , or any usage that could give rise to civil liability or other lawsuit; (vi) use the Panaya System in a manner that violates or infringes any third party rights , including but not limited to, privacy rights, publicity rights or intellectual property rights; and (vii) copy, crawl, index, cache or store any information derived by the Customer’s access or use of the Panaya System which is not Customer Data or Deliverable.

2.7. Failure to comply with the obligations set forth herein, may result, at Panaya’s sole discretion, in the suspension of the Customer’s access to the Account, without derogating from any other remedy Panaya may be entitled to under the Agreement or applicable law.

  1. REPRESENTATIONS AND WARRANTIES

3.1. Each party hereby represents and warrants that: (i) it has the full legal authority to be engaged by and perform its obligations under the Agreement; and (ii) nothing contained in the Agreement nor the performance thereof shall place such party in breach or default of any obligation or other agreement, law or regulation by which it is bound or to which it is subject, or requires the consent of any person or entity.

3.2. Customer hereby represents and warrants that: (i) it will ensure that all its Authorized Users comply with the terms of the Agreement and with the appropriate security measures and access procedures, and will immediately suspend an Authorized User’s access to the Panaya System and use of the Services as soon as it becomes aware of such Authorized User’s violation of the Agreement ; (ii) it will not impersonate another Panaya representative or provide false identity information to gain access to or use the Panaya System; (iii) it will suspend all Accounts for individuals who are no longer authorized to access those Accounts; and (iv) it will comply with any instructions concerning the access to and use of the Panaya System that Panaya may provide from time to time.

3.3. Panaya hereby represents and warrants that: (i) it owns or has the legal rights in the Panaya System; and (ii) it will provide the Services in a timely and professional manner which will conform to and operate in accordance with the Documentation, the Subscription Order and industry standards.

3.4. EXCEPT AS OTHERWISE EXPRESSLY STATED HEREUNDER, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SERVICES, PANAYA SYSTEM, DELIVERABLES, FEATURES AND ANY RELATED DOCUMENTATION, SOFTWARE OR COMPONENT THEREIN ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND. PANAYA DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, AND MAKES NO REPRESENTATION NOR IT EXTENDS ANY WARRANTY OF ANY KIND, WITH RESPECT TO THE SERVICES AND THE PANAYA SYSTEM INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. PANAYA ASSUMES NO RESPONSIBILITY OR LIABILITY FOR: (I) ANY UNAUTHORIZED ACCESS TO THE ACCOUNT AND THE PANAYA SYSTEM OR USE OF THE SERVICES; (II) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE PANAYA SYSTEM; (III) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE PANAYA SYSTEM OR SERVICES; (IV) THE OPERATION OF THE SERVICES IN COMBINATION WITH THE CUSTOMER SYSTEM, OR WITH ANY OTHER HARDWARE, SOFTWARE, PANAYA SYSTEMS OR DATA NOT PROVIDED BY PANAYA; (VI) THE PERFORMANCE OF THE SERVICES IN A MANNER CONSISTENT WITH THE CUSTOMER REQUIREMENTS, SPECIFICATIONS OR EXPECTATIONS; AND (V) ANY LOSS OF DATA OR CONTENT INCLUDING THIRD PARTY CONTENT. IN NO EVENT SHALL PANAYA BE LIABLE FOR ANY DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES, OR DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS, ARISING OUT OF THE ACCESS TO OR USE OF THE PANAYA SYSTEM OR SERVICES, EVEN IF PANAYA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

  1. PAYMENTS, FEES AND TAXES

4.1. Payment terms shall be in accordance with the terms of the Subscription Order. Except as provided in the Agreement or otherwise agreed in writing by the parties, all payment terms are non-cancelable or non-refundable whether or not the Services and the Panaya System are actively used by the Customer or its Authorized Users.

4.2. All payments and other amounts payable by Customer under the Agreement are exclusive of all taxes, including without limitation, sales, use, value-added, withholding or other taxes, customs, levies, or duties imposed by taxing authorities on transactions, and the Customer shall be responsible for payment of all such taxes, levies, or duties, excluding only taxes based solely on Panaya’s net income.

4.3. The Customer agrees to pay all federal, state, local, sales or use taxes, penalties and late charges  imposed by a taxing authority against the payor party as a result of this Agreement, unless an exemption certificate is provided prior to invoice. Panaya shall not have any responsibility or obligation to report or pay to any taxing authority any personal property or intangible taxes or any tax on income that may be imposed by a taxing authority against the Customer in connection with the Services. To the extent that Panaya is required to collect and remit any tax owed by the Customer, Panaya shall invoice the Customer, as a separate line item, the amount of any such tax. For tax purposes, Panaya will relate solely to Customer in Customer’s headquarters per the address in the applicable Subscription Order, as the user of the licenses. Any sales or use tax obligations arising from the extension of such license to Customer’s employees, third party contractors and consultants which may be located in multiple states, will be the sole obligation of Customer to collect and remit to the relevant tax authorities, unless Customer upon signing of the MSA or Subscription Order, provides Panaya with a detailed list of users, their usage percentage of the overall contract and their corresponding state locations. In no event shall Panaya be required to pay any tax owed by Customer, and Customer shall remit to Panaya any such payment, as well as the payment of any fees, penalties or late charges related thereto which Panaya may be required to pay, as a result of any determination in connection with any contest with taxing authorities. Customer shall pay such amount within twenty-five (25) calendar days of receipt by Customer of an invoice from Panaya.

4.4 In the event of late payments, Panaya may assess interest on overdue payments at the rate of one percent (1%) per month, or the maximum rate allowed by law, without thereby derogating from other rights and remedies afforded to Panaya under the Agreement and/or under any applicable law.

  1. TERM AND TERMINATION

5.1. This MSA commences on the Effective Date and continues until terminated as set forth herein. Each Subscription Order will have a separate term (“Subscription Term”). The parties may renew or enter into future purchases, subscriptions or services by signing a new Subscription Order. Notwithstanding anything herein, this Agreement shall remain in full force and effect during the term of any Subscription Order.

5.2. If a party materially breaches any provision of this Agreement or any Subscription Order and fails to cure such breach within thirty (30) days of receipt of written notice from the nonbreaching party, the nonbreaching party may terminate this Agreement or any Subscription Order adversely affected by the breach.  Termination under this Section does not limit either party from pursuing any other remedies available to the party, including, but not limited to, injunctive relief.  Panaya may terminate this Agreement or Subscription Order or suspend the Services if Customer fails to make payments and fees.

5.4. Upon expiration or termination for any reason of the Agreement, the following will apply: (i) Customer shall cease access to or use the Panaya System and the Services; (ii) each party will promptly return to the other party all Confidential Information of the other party in its possession or control, except as otherwise agreed by the parties or as required by applicable laws; and (iii) expiration or termination for any reason of the Agreement shall not derogate from rights and obligations accrued prior to the effective date of expiration or termination, and shall not relieve the Customer from its obligation to pay the applicable consideration that remains unpaid or limit either party from pursuing other available remedies.

5.5 All sections detailed herein which by their nature are intended to survive termination shall survive termination or expiration for any reason.

  1. INTELLECTUAL PROPERTY

6.1. The Intellectual Property and all other rights, title and interest of any nature in and to the Panaya System and the Services or any related documentation made available by or on behalf of Panaya hereunder (including all modifications, enhancements, upgrades, customizations and derivative works thereof, but excluding the Customer Data and the Deliverables) (“Panaya’s Intellectual Property”) are and shall remain the exclusive property of Panaya or its licensors. Except as expressly permitted in the Agreement, Customer has no right in and to the Panaya’s Intellectual Property and shall not use, adopt, modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance, exploit any of the Panaya’s Intellectual Property or register any trade names or symbols that are identical, or confusingly similar, to any such trademarks or trade names used by Panaya. The provisions of this section shall remain in full force and effect after termination or expiration of the Agreement for whatever reason. Nothing in this Agreement shall be construed as transferring any right, title, or interest to the Customer or any third party unless explicitly stated hereunder. Panaya and its licensors reserve any and all rights not expressly granted in the Agreement. The provisions of this section shall remain in full force and effect after termination or expiration of the Agreement for whatever reason.

  1. INDEMNIFICATION

7.1. Each party (“Indemnifying Party“) shall indemnify, defend and hold harmless, the other party and its respective affiliates, officers, directors, shareholders, or representatives (“Indemnified Party“) from any and all demands, judgments, awards, losses, damages, expenses, claims and liabilities, and all related costs, including reasonable legal fees incurred by Indemnified Party as a result of or arising out of a third party claim of: (i) a breach of the Agreement or violation of applicable law by the Indemnifying Party; (ii) Indemnifying Party gross negligence, willful misconduct or fraud; or (iv) Indemnifying Party infringement or mis-appropriation of such third party’s intellectual property rights or the privacy of any third party. Notwithstanding the above, Panaya shall not be obligated to indemnify the Customer if such claim arises from the misuse of the Panaya System or Service.

7.2. The obligations under this Section will only apply if the Indemnified Party: (i) promptly notifies the Indemnifying Party, in writing, regarding the claim; (b) permits the Indemnifying Party to control the defense and settlement of the claim; and (c) reasonably cooperates with the Indemnifying Party (at the Indemnifying Party’s expense) in the defense and settlement of the claim.

In no event will Indemnifying Party agree to any settlement of any claim that involves any negative commitment of the Indemnified Party, without its consent.

  1. DISCLAIMER AND LIMITATION OF LIABILITY

8.1. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL PANAYA’S MAXIMUM AGGREGATE LIABILITY FOR DAMAGES IN CONNECTION WITH THE TERMS OF THE AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER UNDER THE SUBSCRIPTION ORDER FOR THE SUBSCRIPTION TERM DURING WHICH THE EVENT GIVING RISE TO SUCH CLAIM OCCURRED, LESS AMOUNTS ALREADY PAID BY PANAYA UNDER THE SAME SUBSCRIPTION ORDER FOR ANY PREVIOUS LIABILITIES.

8.2. No actions may be brought against Panaya arising from or in connection with the Agreement later than one (1) year following the effective date of the expiration or termination for any reason of the Agreement.

  1. CONFIDENTIALITY

9.1. Except as set for the herein, and to the extent required under applicable law, the Receiving Party agrees to keep confidential and not disclose, use, copy, or distribute any Confidential Information to anyone, other than to those of its employees and contractors, if and to the extent that such employees and contractors have a need to know such Confidential Information for the purpose of Receiving Party’s performance of the Agreement, and provided that such employees and contractors are bound to abide by all the obligations concerning such Confidential Information contained in the Agreement. The obligations outlined in this Section 9 shall survive the termination or expiration of the Agreement for a period of 3 years following the termination. All Confidential Information shall be and remain the property of the Disclosing Party. The disclosure of the Confidential Information shall not be construed as granting the Receiving Party any right, title, or license, whether express or implied, with respect to the Confidential Information or to its related Intellectual.

9.2. Each party acknowledges that its breach of this Section 9 may cause the other party extensive and irreparable harm and damage, and agrees that the other party shall be entitled to seek injunctive relief, without posting a bond, to prevent use or disclosure of its Confidential Information not authorized by this Agreement, in addition to any other remedy available to the other party under applicable law.

  1. DATA PROTECTION

10.1. The Customer acknowledges that the Customer Data may be stored either in the EU or US subject to the Customer’s discretion. Further, Panaya will protect the confidentiality of the Customer Data residing in the environment in accordance with the Panaya security practices, if Customer Data includes Personal Data (as defined under applicable data protection regulation and the DPA), the parties undertake to comply with the terms of the DPA.

10.2. In the event the Customer subscribes to the Recording Feature, the Customer undertakes to ensure the Recorded Data will not include Sensitive Data (as defined under applicable data protection regulation) and shall inform its personnel not to disclose personal or Personal Sensitive Data during the recording session.

 

11.MISCELLANEOUS

11.1. Panaya reserves the right to modify, correct, or amend the terms of the MSA at any time in its sole discretion, without any notice, effective immediately. In the event of a material change Panaya will provide the Customer with prior notice before such changes. The most current version of this MSA will be reflected under the “Last Updated” date that appears in the header of this MSA.

11.2. The Agreement shall be governed and construed by the laws of the State of New York, United States, without giving rise to any conflict of law provisions therein. The parties hereby agree to the exclusive jurisdiction of the courts of the State of New York, USA.

11.3. Each party is an independent contractor and as such will not have any authority to bind or commit the other. Nothing herein shall be deemed or construed to create a joint venture, fiduciary or agency relationship between the parties for any purpose.

11.4. The Agreement and the rights and obligations therein may not be assigned or transferred by either party without the prior written consent of the other party. However, Panaya may assign the Agreement at any time by providing the Customer a written notice in connection with a merger, acquisition or sale of all or substantially all of its business or assets  or to any affiliate or as part of a corporate reorganization. .

11.5. All notices, requests, demands, waivers and other communications required or permitted hereunder must be in writing and shall be deemed to have been duly given (i) immediately if provided by electronic mail to [email protected] or to the Customer e-mail address as record in the Account or Subscription Order;  or (ii) one day after delivery by receipted mail delivery. All correspondence, notices and technical documentation exchanged between the parties shall be provided in the English language only.

11.6. Panaya shall not be liable for any delay or failure to perform its obligations according to the Agreement if and to the extent that such delay or failure to perform is caused or otherwise brought about by circumstances beyond Panaya’s reasonable control, including strikes, lockouts, labor troubles, restrictive government or judicial orders or decrees, riots, insurrection, war, terrorism, Acts of God or inclement weather, which Panaya is unable to prevent by the exercise of reasonable due diligence.

11.7. Should any or all of the provisions of the Agreement be determined to be invalid, unlawful, or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions of the Agreement shall not in any way be affected or impaired by such determination and will remain in full force and effect, and the provision affected will be construed to be enforceable to the maximum extent permissible by law.

11.8. A delay or omission by Panaya to exercise any right under the Agreement shall not be construed to be a waiver of such right. All waivers by Panaya must be in writing to be effective.

11.9.  This Agreement constitute the entire agreement of the parties hereto with respect to the subject matter hereof and thereof, and supersede all prior agreements and understandings of the partiesoral and written, with respect to the subject matter hereof.

 

11.10  In case of any conflict between the provisions of this Agreement and the provisions of a Subscription Order, the provisions of this Agreement shall prevail as to the subject matter of such conflict, unless specifically stated otherwise in such Subscription Order.