Panaya Master Subscription Agreement

THIS MASTER SUBSCRIPTION AGREEMENT IS EFFECTIVE AS OF THE DATE YOU ACCEPT THE PROPOSAL SUBMITTED TO YOU BY PANAYA (AS DEFINED BELOW) FOR THE SERVICES (AS DEFINED BELOW) (“EFFECTIVE DATE“), AND BY ACCEPTING SUCH PROPOSAL, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS GOVERNING YOUR USE OF THE SERVICES (AS DEFINED BELOW). THE TERM “YOU” REFERS TO ANY LEGAL ENTITY USING THE SERVICES (AND “YOUR” SHALL BE DEFINED ACCORDINGLY). IF YOU ARE AN INDIVIDUAL ENTERING INTO THIS AGREEMENT (AS DEFINED BELOW) 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

1.1. Panaya provides subscription-based on-demand online services for testing and impact analysis of Changes made to Systems (as both terms are defined below), on the basis of the Panaya Technology (as defined below), as such services are more fully described at the Panaya official website  (collectively, the “Panaya Services“). Registration for, or use of, the Services shall be deemed to be Your agreement to abide by this Agreement as well as by Panaya’s Data Processing Agreement, and including  any materials available on the Panaya website incorporated by reference herein, including but not limited to, Panaya’s Privacy and Security Policy.

1.2. When used in this Agreement or in any Subscription Orders (as defined below) now or hereafter associated herewith the following terms shall have the following meanings:

Account” means Your account as opened and registered on Panaya’s systems;

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;

Billing Period” means the period of time with respect to which each invoice will be issued (e.g., annual basis), as set forth in the applicable Subscription Order.

Changes” means certain configurations, customizations and/or code modifications in or to the System;

Code” means the custom code of the applicable System for which the Services are to be provided, extracted from Your System by using Panaya’s ETL (Extract, Transform, Load) software tool;

 “Confidential Information” means information, in whatever form disclosed, provided by or on behalf of either party (“Disclosing Party“) to the other party (“Receiving Party“), or to which the Receiving Party otherwise gains access, in the course of or incidental to the performance of this Agreement, and that should reasonably be understood by the Receiving Party because of legends or other markings, the circumstances of disclosure or the nature of the information itself, to be proprietary and confidential to the Disclosing Party or a third party. Without derogating from the generality of the above, the Panaya Technology shall be deemed as Confidential Information of Panaya.

Contractor(s)” means any third party contractor, such as a system integrator, 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;

Customer Data” means, collectively, the Code and the Usage Data, used by Panaya in order to provide You with the Services. Customer Data may include Personal Data as defined below

DPA” means the Data Processing Addendum to reflect the parties’ agreement with regard to the Processing of Personal Data, and which forms part of this Master Subscription Agreement.

Deliverable” means any audio and visual information, documents, data, analysis and reports being the output of Services provided by Panaya to You under this Agreement, excluding any Intellectual Property of Panaya embedded therein. The term “Deliverable” does not include the Panaya technology;

Intellectual Property” means all intellectual, moral, industrial and/or proprietary property and rights now or hereafter recognized under any applicable law or in equity anywhere in the world, whether issued or pending, registered or unregistered, including, but not limited to, rights in unpatented inventions, patent applications, patents and utility models, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, database rights, know-how, trade secret rights and all rights to confidential or proprietary information, and all other intellectual property rights in the broadest meaning of the term, derivatives thereof, and forms of protection of a similar nature, and any current or future applications, renewals, extensions, provisional, continuations, continuations-in-part, divisions, re-exams and reissues thereof; the right to apply to any of the above; and all of the tangible embodiments thereof;

Intellectual Property Rights” means all rights, title and interest in and to any Intellectual Property;

Panaya” means the Panaya entity appearing in the applicable Subscription Order;

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, but not limited to, software, 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 in providing the Service;

Panaya Tools” means the extraction software and any other software tools You may receive access to from time to time, by Panaya, in order to receive the Service;

Personal Data” means any data or information that relates to an identified or identifiable individual – as defined in the “Applicable Data Protection Legislation” which means: (i) as any legislation in force within the European Union on the protection of personal data, including Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data  (the “GDPR”) together with the codes of practice, codes of conduct, regulatory guidance and standard clauses and other related legislation resulting from such Regulation; and (ii) any data privacy laws in any other country which applies to Panay’s Services. 

Service(s)” means the specific Panaya Service(s) to which You subscribed under the applicable Subscription Order. The terms “Panaya Services” and “Services” do not include the Deliverables;

Subscription Order(s)” means an order (substantially in the form attached hereto as Exhibit A) evidencing the agreed Subscription Period (and, to the extent agreed in writing, any extension thereof), 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;

Subscription Period” means the term during which the Services will be available to You, as shall be set forth in the applicable Subscription Order;

System” means a unique landscape used by You and implemented as a single SAP® installation or Oracle E-Business Suite® installation and for which Services are subscribed for;

Usage Data” means the usage metadata of the applicable System for which the Services are to be provided, extracted from Your System by using Panaya’s ETL (Extract, Transform, Load) software tool;

User” means a user, with a unique username and password, that is granted access to the Services.

  1. The Services

2.1. You hereby engage Panaya to provide You with the Services set out in the specific Subscription Order, and Panaya hereby agrees to provide You with the Services, all subject to and in accordance with the terms and conditions set out below. In the event that the Services include Panaya’s recording feature, then the provision of Exhibit B hereto shall also apply.

2.2. The rendering of the Services to You hereunder shall be on a non-exclusive basis.

2.3. During the term of this Agreement, You may order Services, subject to the terms and conditions as set out in this Agreement.

2.4. The Services shall be provided by Panaya solely in connection with the Panaya Technology and the authorized use thereof.

2.5. The procurement of the Services hereunder shall be done by the issuance and acceptance of Subscription Orders.

Each Subscription Order shall reference this Agreement, shall be deemed to incorporate the terms and conditions of this Agreement, and will be binding on the parties only when signed by both parties. Each party shall ensure that the Subscription Orders made hereunder are signed only by its duly authorized representatives.

Each Subscription Order and this Agreement shall constitute the entire agreement between the parties relating to a particular Subscription Order. In case of any inconsistency or contradiction 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 inconsistency.

2.6. Each party shall designate a contact person to coordinate the activities to be performed under this Agreement and any Subscription Order.

2.7. You shall provide Panaya with complete, timely and accurate information, data and materials required by Panaya for the performance of Services. You will be responsible for, and assume the risk of, any problems resulting from the content, accuracy, completeness and consistency of all such information, data and materials You have supplied.

  1. Grant of License; Restrictions

3.1. Subject to the terms of this Agreement and Your payment of all relevant fees, Panaya hereby grants You a non-exclusive, revocable, non-transferable and non-sublicensable, limited license to access and use the Services, solely for Your own internal business purposes, all as set out in the relevant Subscription Order.

3.2. The access is granted per System for impact analysis Services and/or User for testing Services, and 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.

3.3. With respect to the Services, Panaya Technology and Panaya Tools You shall not: (i) sell, resell, transfer, assign, sub-license, distribute or otherwise commercially exploit, or allow access or make it available to any third party in any way, including, but not limited to, by way of commercial timesharing, service bureau, or outsourcing arrangement (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), or otherwise utilize it in any manner not expressly allowed under this Agreement. You shall notify Panaya immediately and in writing, if You become aware of any unauthorized third party access to, or use of, the Panaya Tools and/or Panaya Technology; (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 Panaya Tools, Panaya Technology and/or of the Services or any Deliverables ; (vi) reverse engineer, decompile, disassemble, modify, adapt, or translate the Panaya Tools and/or Panaya Technology, except as expressly permitted by applicable mandatory law which cannot be superseded (vii) make copies of the Panaya Tools and/or Panaya Technology; (viii) create any unauthorized Internet “links” to the Panaya Tools and/or Panaya Technology, or “frame” or “mirror” any content of the Panaya Tools and/or Panaya Technology on any other server or wireless or Internet-based device, or (ix) Remove or alter any patent numbers, trade names, copyright notices, trademark notices, serial numbers, labels, tags or other identifying marks, symbols or legends included in and/or otherwise affixed to any documentation, the Panay Tools and/or to any Deliverables.

  1. Fees, Terms and Payment and Taxes

4.1. You shall pay any and all fees applicable to Your Account in accordance with the terms of payment set forth in the applicable Subscription Order. All charges committed by You in a signed Subscription Order will be fixed for the Subscription Period specified in the applicable 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.

4.2. Panaya’s fees 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 made under this Agreement, and You shall be responsible for payment of all such taxes, levies, or duties, excluding only taxes based solely on Panaya’s net income.

4.3. 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 Panaya’s 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.

4.4. In the event that the Subscription Period is extended by the parties in writing, Panaya will automatically renew and issue an invoice to You for any applicable Billing Period.

4.5. You agree to provide Panaya with complete and accurate billing and contact information as shall be requested by Panaya. You agree to update such billing information within thirty (30) days of any change thereto. If the contact information You have provided is false or fraudulent, Panaya reserves the right to terminate Your access to the Service without thereby derogating from other rights and remedies afforded to Panaya under this Agreement and/or under any applicable law.

4.6. In the event of late payment, Panaya may assess interest on overdue payments at the rate of one percent (1%) per month, or the maximum lesser rate allowed by law, from the due date for payment until payment is received by Panaya (whether before or after judgment), accruing on a daily basis and compounding monthly, without thereby derogating from other rights and remedies afforded to Panaya under this Agreement and/or under any applicable law.

4.7. Unless otherwise stated in the Subscription Order, all fees shall be quoted and paid for in U.S. dollars.

 

  1. Responsibilities

5.1. You shall be responsible and liable for all activity occurring under Your Account, including the actions of all persons who were provided with a username and password by You or on Your behalf (including, without limitation, Contractors).

You shall: (i) ensure that any users accessing the Services and/or the Panaya Tools, shall use the Services and/or the Panaya Tools strictly in accordance with this Agreement; (ii) maintain and procure that the users accessing the Services and/or the Panaya Tools shall comply with appropriate security measures and access procedures, in order to ensure that the access to the Services and/or the Panaya Tools are accessed only by the Users and that Panaya’s Intellectual Property Rights and other rights under his Agreement are not compromised in any way; (iii) notify Panaya immediately of any unauthorized use of any password or Account or any other known or suspected breach of security; (iv) not impersonate another Panaya user or provide false identity information to gain access to or use the Services; (v) suspend all user Accounts for individuals who are no longer authorized to access those Accounts, and (vi) comply with any instructions concerning access to and/or use of the Services that Panaya may give from time to time.

 

  1. Customer Data

6.1. You acknowledge that in order to allow Panaya to provide the Services, You shall be required to provide Panaya with Your Customer Data, and Panaya will store and process such Customer Data within Amazon hosting services cloud (AWS) located both in the USA and Europe in order to provide You with the Services.

6.2. You have the sole and exclusive ownership and control of the Customer Data, including all Intellectual Property Rights and Personal Data related thereto. You hereby grant to Panaya, during the term of this Agreement, a non-exclusive, worldwide, fully paid up and royalty free license to use, copy, store and display the Customer Data solely to the extent necessary to provide You with the Services.

Without derogating from the generality of the above, the parties hereby declare and confirm that in the provision of the Services, Panaya acts with the Customer Data only as instructed by the Customer and remains a Data Processor (as defined in the GDPR) while the Customer remains as the Data Controller (as defined in the GDPR). No act of Panaya under this MSA or otherwise in connection with the provision of the Services, will qualify Panaya as Data Controller.

6.3. Panaya will not (i) share, publish, post, sell or otherwise transfer the Customer Data to any third party, or (ii) sell, rent or lease any Personal Data included therein to third parties, without receiving Your prior explicit consent, except as further specified in the Data Processing Agreement between the Parties (“DPA”) and without derogating from the provisions of the DPA:

  1. In order to provide You with the Services, including, but not limited to, storing and processing Customer Data through third party hosting services as indicated above;
  2. If You have 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 may be required;
  3. If Panaya is required by applicable law, rules or regulations to do so; and/or
  4. If Panaya organizes the provision 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;

6.4. Notwithstanding anything to the contrary herein express or implied, Panaya may utilize Customer Data to anonymously aggregate, publish or otherwise make known performance benchmarks or other data metrics about the use of the Services, and such use is an integral part of the Services ordered by You under this Agreement.

Customer hereby obliges to notify the data subjects of such use (and obtain their consent if needed), through Customer’s privacy policy or other mean that is acceptable to obtain such transparency and/or consent. Customer will provide Panaya its data privacy policy (or other applicable document) indicating such transparency notification and/or consent. This requirement is a material obligation of the Customer under this MSA and should Customer removes form its policy or other applicable document such notification and/or consent, Panaya may terminate this MSA for material breach.

6.5. You and Your Contractors shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and ownership or right to use of all Customer Data.

6.6. Panaya will make no effort to validate any of the Customer Data for correctness or usability. Panaya shall not be responsible or liable for the deletion, correction, destruction, damage, loss and/or failure to store any Customer Data.

6.7. You agree that Panaya has no obligation to retain any Customer Data provided to Panaya, except as necessary for the provision of the Services.

 

  1. Representations and Warranties

7.1. Each party hereby represents and warrants that (i) it has all requisite corporate power and authority to execute, deliver, and perform its obligations under this Agreement, (ii) its signing of, and agreement, to this Agreement have been duly authorized by all requisite corporate actions, (iii) this Agreement is a valid and legally binding obligation thereon, enforceable against it in accordance with its terms; and (iv) nothing contained in this Agreement nor the performance thereof shall place the relevant 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.

7.2. In addition, You hereby represent and warrant that: (i) You are the ultimate end user of the Services provided hereunder, (ii) You are the owner or authorized licensee of the Customer Data and Controller of the Personal Data, and have secured all necessary licenses, consents, authorizations and waivers for the use of the Customer Data, and all Intellectual Property Rights contained in, and that may form part of, the Customer Data, and there are no conflicting claim(s) with respect to Customer’s rights thereto; (iii) the Customer Data and Your use of the Services shall at all times comply with the terms of this Agreement; (iv) during the term of this Agreement, and at all times during Your use of the Services, You shall comply with all laws, rules and regulations relating to the Customer Data; and (v) You shall not use the facilities or capabilities of the Services to conduct any illegal activity, solicit the performance of any illegal activity, or engage in any other activity which infringes upon the rights of Panaya or any third party. If You breach any of the warranties contained in this Section 7.2, Panaya may, in addition to any other rights it may have in law, exercise its right to terminate this Agreement in accordance with the provisions of Section 13.2 below.

7.3. THE SERVICES, THE PANAYA TOOLS AND THE DELIVERABLES ARE PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS.

ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER WRITTEN OR ORAL, 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 SERVICES, THE PANAYA TOOLS AND/OR THE DELIVERABLES, ARE HEREBY DISCLAIMED BY PANAYA (INCLUDING ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, SUBPROCESSORS, SUCCESSORS OR ASSIGNEES) AND ITS LICENSORS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW .

WITHOUT DEROGATING FROM THE AFORESAID, PANAYA (INCLUDING ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, SUBPROCESSORS, SUCCESSORS OR ASSIGNEES) 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 AND/OR ANY OF THE DELIVERABLES.

IN ADDITION, PANAYA EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY WITH RESPECT TO LIABILITY FOR COMPLIANCE WITH LAWS, REGULATIONS, OR OTHER OFFICIAL GOVERNMENT RELEASES APPLICABLE TO YOU, WHICH SHALL BE AT YOUR SOLE RESPONSIBILITY.

PANAYA (INCLUDING ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, SUBPROCESSORS, 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 (EXCEPT IF SUCH HARDWARE, SOFTWARE, SYSTEM OR DATA IS SPECIFICALLY DETAILED IN THE APPLICABLE SUBSCRIPTION ORDER), (B) THE SERVICES AND THE PANAYA TOOLS AND/OR THEIR QUALITY WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ERRORS OR DEFECTS WILL BE CORRECTED, OR (D) THE SERVICES, THE PANAYA TOOLS AND/OR THE SERVER(S) USED FOR THE PROVISION OF THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

 

  1. Limitation of Liability

8.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL PANAYA BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR (I) ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, (II) ANY DAMAGES RESULTING FROM LOSS OF DAMAGE TO DATA, LOSS OF REVENUE, LOSS OF PROFITS, USE OR OTHER ECONOMIC ADVANTAGE, LOSS OF GOODWILL, AND/OR (III) ANY THIRD PARTY CLAIMS AGAINST YOU; ARISING OUT OF, OR IN ANY WAY ARISING OUT OF OR CONNECTED WITH THIS AGREEMENT, ANY SUBSCRIPTION ORDER, THE SERVICES (INCLUDING, BUT NOT LIMITED TO, THE USE OR INABILITY TO USE THE SERVICES), OR FOR ANY DELIVERABLES, AND/OR ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF THE BASIS FOR LIABILITY OF ANY CLAIM (WHETHER BASED ON CONTRACT, TORT, OR OTHERWISE), EVEN IF PANAYA HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

8.2. IN NO EVENT SHALL PANAYA’S AGGREGATE LIABILITY UNDER THIS AGREEMENT AND/OR ANY SUBSCRIPTION ORDER, INCLUDING LIABILITY ARISING OUT OF SERVICES PERFORMED AND/OR FROM ANY DELIVERABLES PROVIDED AND/OR FROM ANY DATA PRIVACY LAWS BREACH, EXCEED THE AMOUNTS ACTUALLY PAID BY YOU UNDER THE RELEVANT SUBSCRIPTION ORDER FOR THE BILLING PERIOD 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.

8.3. 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 OR RELATED TO SUCH PROBLEMS.

8.4. No action may be brought against Panaya arising from or in connection with this Agreement and/or any Subscription Order later than one (1) year from the expiration or termination for any reason of this Agreement or of the respective Subscription Order (the earlier of the two).

8.5. The above limitations of liability shall also apply to the benefit of Panaya’s directors, officers, employees and agents.

 

  1. Ownership

9.1. Panaya alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Panaya Technology and the Panaya Tools. You are granted no title or ownership rights in or to the Panaya Tools or the Panaya Technology.

Without derogating from the above, Panaya, reserves all proprietary rights in and to (i) all designs, engineering details and other data pertaining to the Panaya Technology and the Panaya Tools, (ii) all original works, computer programs and Intellectual Property arising out of, and/or products developed as a result of, the Services.

the Panaya Technology and the Panaya Tools contain trade secrets of Panaya, including, without limitation, the source code version and the specific design of the Panaya Tools and the Panaya Technology.

 You may use the Panaya Technology and the Panaya Tools only in accordance with and subject to the terms and conditions of Section 3 above. All rights not expressly granted herein are reserved by Panaya.

Upon payment by You of all applicable fees, all right, title, and interest in and to the Deliverables, shall be Your sole and exclusive property.

9.2. 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. You shall not adopt, use or register any trade names or symbols that are identical, or confusingly similar, to any such trademarks or trade names used by Panaya.

9.3. You shall promptly notify Panaya in writing of any infringement or other violation of Panaya’s Intellectual Property Rights to which You become aware.

Panaya shall have the sole and exclusive right to protect and defend Panaya’s Intellectual Property Rights, at its sole cost and expense. You shall reasonably cooperate with Panaya, at Panaya’s expense, in the defense and protection of such Intellectual Property Rights.

 

  1. Indemnity

10.1. Panaya shall defend, indemnify and hold You harmless from and against any loss or damage (including reasonable attorneys’ fees) incurred in connection with claims made or brought against You by a third party alleging that the use of the Services as contemplated hereunder infringes any copyright or trade secret of a third party, provided that You (a) notify Panaya in writing promptly of each such claim; (b) give Panaya sole control of the defense and/or settlement of the claim; (c) fully cooperate with Panaya in the defense or settlement of the claim; and (d) do not admit to any such claim, agree to settle such claim, and/or make any payments with respect to such claim, without Panaya’s prior written consent.

In the event that the Services or any part thereof are, in the opinion of Panaya, 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 Services, or any part thereof, or modify the Services, or any part thereof, to make them non‑infringing, then Panaya has the right, by written notice, to terminate this Agreement and upon such termination will refund to You all fees paid by You to Panaya in advance for the Services that cannot be used by You due to the infringement.

Panaya shall have no indemnity or other obligations to the extent a claim is based on: (i) combination, operation, or use of the Services with other hardware, software, system or data not detailed in the applicable Subscription Order; (ii) Your use of the Services in any manner inconsistent with the applicable license terms and conditions and/or the provisions of this Agreement and/or of the respective Subscription Order; or (iii) any Panay Technology or Panay Tool developed or modified in response to Your specific written instructions and specifications.

THE FOREGOING PROVISIONS OF THIS SECTION 10.1 STATE THE ENTIRE LIABILITY AND OBLIGATION OF PANAYA AND YOUR EXCLUSIVE REMEDY FOR CLAIMS OF INFRINGEMENT OF THIRD PARTY RIGHTS.

10.2. You shall indemnify, defend and hold harmless Panaya and its affiliates, and their respective officers, directors, agents, and employees (collectively, “Panaya Indemnitees“), from and against all claims, liabilities damages and expenses (including reasonable attorney’s fees) arising out of claims or demands made against any of the Panaya Indemnitees: (i) by third parties based on or related to You or Your Contractors’ breach of any undertakings or representations herein (including but not limited to with respect to non-compliance with your data protection obligations) or any of Your actions or omissions with respect to the performance of this Agreement, (ii) by any of Your Contractors in connection with the Services, and (iii) by third parties alleging that use of the Customer Data infringes or misappropriates the rights of, or has caused harm to, any third party.

 

 

 

  1. Confidentiality

11.1. The Receiving Party agrees to hold in confidence the Confidential Information of the Disclosing Party, and to refrain from copying, distributing, disseminating or otherwise disclosing such Confidential Information to anyone, other than to those of its employees, if and to the extent that such employees have a need to know such Confidential Information for the purpose of Receiving Party’s performance of this Agreement, and provided that such employees are bound to abide by all the obligations concerning such Confidential Information contained in this Agreement.

11.2. The Receiving Party undertakes not to use the Confidential Information of the Disclosing Party for any purposes other than for the purposes of performing this Agreement, and not to sell, grant, make available to, or otherwise allow the use of the Disclosing Party’s Confidential Information by any third party, directly or indirectly, except as expressly permitted herein.

11.3. All Confidential Information shall be and remain the property of the Disclosing Party. Disclosure of the Disclosing Party’s Confidential Information to the Receiving Party 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 Property or products (including, but not limited to, improvements, modifications and/or derivatives related to the Confidential Information), other than the right to use the Confidential Information strictly in accordance with the provisions of this Agreement and the relevant Subscription Order.

11.4. The confidentiality obligations of the Receiving Party regarding the Disclosing Party’s Confidential Information shall not apply to Confidential Information which (a) is on the Effective Date, or thereafter becomes part of the public domain in reasonably integrated form without fault on the part of the Receiving Party, (b) is lawfully obtained from a source other than the Disclosing Party, which source is free of any obligation to keep the same confidential, (c) is previously known to the Receiving Party without an obligation to be kept confidential, as can be substantiated by written and dated records, (d) was independently developed by the Receiving Party, without use of the Disclosing Party’s Confidential Information, as can be substantiated by written and dated records, or (e) is expressly released in writing from such obligations by the Disclosing Party.

11.5. Notwithstanding anything to the contrary herein express or implied, the Receiving Party may disclose Confidential Information of the Disclosing Party required to be disclosed pursuant to law, regulation, judicial or administrative order, or request by a governmental or other entity authorized by law to make such request (including, without limitation, a stock exchange where Receiving Party’s stocks are listed for public trading); provided, however, that, to the extent possible, the Receiving Party so required to disclose shall first notify the Disclosing Party in writing to enable it to seek relief from such requirement and render reasonable assistance requested by the Disclosing Party (at the Disclosing Party’s expense) in connection therewith, and, provided further, that the disclosure shall be limited to the extent expressly required.

11.6. The Receiving Party shall keep the Disclosing Party’s Confidential Information confidential and secure and shall use at least the same standard of care to protect the Disclosing Party’s Confidential Information as the Receiving Party employs for the protection of its own confidential and proprietary information of a similar nature, but in no event less than a reasonable standard of care.

11.7. Each party acknowledges that its breach of this Section 11 may cause the other party extensive and irreparable harm and damage, and agrees that the other party shall be entitled to injunctive relief 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.

11.8. All copies of Confidential Information, regardless of form, shall, at the discretion of the Disclosing Party, either be destroyed or returned to the Disclosing Party, promptly upon the earlier of: (i) Disclosing Party’s written request, or (ii) expiration or termination for any reason of this Agreement or the applicable Subscription Order (to the extent related to the Confidential Information), and in any of such events shall not thereafter be retained in any form by the Receiving Party. The Receiving Party shall confirm such destruction or return in writing to the Disclosing Party.

 

  1. Privacy, Security and Transfer of Customer Data

12.1. Panaya and third parties on its behalf shall maintain appropriate technical and organizational measures for protection of the security (including protection against unauthorized or unlawful Processing and against accidental or unlawful destruction, loss or alteration or damage, unauthorized disclosure of, or access to, Customer Data), confidentiality and integrity of 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.

12.2. Panaya stores and processes the Customer Data through a third party hosting service (as aforesaid) in the USA or in Europe. You shall notify Panaya in advance whether You would like Panaya to store and process the Customer Data in Europe or in the US. 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 notify Panaya explicit instructions that the Personal Data contained in Your Code or otherwise included in the Customer Data will reside in Europe, for the purposes described in this policy.

12.3. 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.

 

  1. Term

13.1. This Agreement shall be effective from the Effective Date, and shall thereafter continue for the duration of the Subscription Period of the relevant Subscription Order, unless terminated in accordance with the provisions of this Section 13.

13.2. 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 (at its sole discretion), 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.

13.3. Upon expiration or termination for any reason of this Agreement or any Subscription Order, the following will apply: (a) the license granted to You hereunder shall terminate on the effective date of termination; (b) Panaya shall immediately cease performing the Services; (c) You shall un-install the Panaya Tools; (d) expiration or termination for any reason of this Agreement shall not derogate from rights and obligations accrued prior to the effective date of expiration or termination, and shall not relieve You from Your obligation to pay fees that remain unpaid and shall not limit either party from pursuing other available remedies.

Expiration or termination for any reason of this Agreement shall cause the expiration or termination of any outstanding Subscription Order, unless otherwise agreed in advance and in writing by the parties.

The provisions of Sections 1.2, 3.3, 4, 6.2, 6.3, 7 through and including 12, 13.3, 14 through and including 17, shall survive the expiration or termination of this Agreement for any reason.

  1. Compliance with Laws

You shall abide by all applicable local, state, national and foreign laws, treaties and regulations of any country relevant to Your performance of this Agreement and/or in connection with Your use of the Services and the Panay Tools, including (but not limited to) those related to data privacy, international communications and the transmission of technical or Personal Data.

 

  1. Governing Law and Jurisdiction

15.1. This Agreement and the validity, performance, construction and effect thereof, shall be exclusively governed by the laws of the State of New York, USA, without regard to the choice or conflicts of law provisions thereof.

15.2. Any disputes, actions, claims or causes of action arising out of or in connection with this Agreement (including, but not limited to, the validity, enforceability, interpretation, performance, breach or termination thereof), or the Service, shall be subject to the exclusive jurisdiction of the courts of New York, USA. Both parties hereby submit to the exclusive jurisdiction of the aforementioned courts.

 

  1. Notice / Language

16.1. 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 forty eight (48) hours after mailing or posting (if sent by first class mail or pre-paid post) or twelve (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.

16.2. All correspondence, notices and technical documentation exchanged between the parties under and/or in accordance with this Agreement or any Subscription Order, the Services and the Deliverables, shall be provided in the English language only, unless otherwise agreed by the parties in writing.

 

  1. Miscellaneous

The headings of the Sections in this Agreement are for reference only and shall not be considered in the interpretation hereof. In this Agreement, unless the context otherwise requires or expressly stated otherwise: singular terms include the plural and vice versa; the use of any gender shall be applicable to both genders; the words “include” and “including” will not be construed as terms of limitation; the words “day”, “month” and “year” mean respectively, calendar day, calendar month and calendar year. References to any legislation or regulations include references to any amendments or re-enactments thereof from time to time. Any translation of this Agreement is provided solely for Your convenience and is not intended to modify this Agreement. In the event of a conflict between the English version of this Agreement and a version in a language other than English, the English version shall apply.  This Agreement, together with any applicable Subscription Order, comprises the entire Agreement between the parties and supersedes all prior or contemporaneous negotiations, discussions and agreements, whether written or oral, between the parties regarding the subject matter contained herein.  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.  Panaya reserves the right, at any time and from time to time, without liability to Panaya or notice to You, to change any of the provisions of this Agreement. Any such changes will be effective immediately and incorporated into this Agreement by this reference. Your continued use of the Service will be deemed to constitute Your acceptance of any and all such changes.  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. No waiver of any past or present right arising from any breach or failure to perform shall be deemed to be a waiver of any future right arising under this Agreement.  This Agreement may not be assigned by You without the prior written approval of Panaya and any purported assignment without such prior written consent shall be void. Subject to the above, this Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto and their respective successors and permitted assigns.  Panaya shall not be liable for any delay, loss and/or damage resulting from causes beyond the reasonable control thereof.  This Agreement does not create any obligation of a party to any third parties, nor shall it be deemed to create any rights or causes of action on behalf of any third parties.

Last Update: May, 2018 

 

 

 

 

SPECIFIC PROVISIONS

FOR PANAYA’S RECORDING FEATURE

 

The provision of this Exhibit will apply (subject to the provisions of Section 5 below), in addition to the provisions of the Agreement and the relevant Subscription Order (collectively, the “Subscription Documents“), in the event that You have requested, and Panaya has agreed, that the Feature (as defined below), shall be made available to You as part of the Services provided to You under the relevant Subscription Order.

 

NOW, THEREFORE, the parties hereby agree, declare and covenant as follows:

  1. The Feature

1.1. As an additional tool for the purpose of analysis of certain configurations and/or customizations and/or code modifications in the  Your system, Panaya shall make available to You a recording feature (the “Feature“) which shall allow You, or persons who were duly provided with a Panaya username and password by You or for You (including, without limitation, Your employees and contractors) (“Users“), to record all actions performed and/or data displayed on Your stations on which the Feature was activated (whether related to the system being analyzed or otherwise) (“Recorded Data”).

1.2. The Feature shall be activated and Recorded Data shall be collected only when You and/or any User actively enables the recording and such recording may at any time be stopped by You or the applicable User.

1.3. The Recorded Data shall be stored and processed through a third party hosting service and shall be accessible by certain representatives of Panaya, by You and by Users. The Recorded Data shall at all times be subject to the DPA and 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.

1.4. You expressly acknowledge, and shall be responsible for assuring, that all Users are aware that the Recorded Data may include sensitive and Personal Data relating to You and/or any such User (e.g., details of websites accessed through the station on which the Feature was activated, user names and passwords, personal emails, etc.). 

 

 

  1. Your Responsibilities

2.1. You shall be responsible for any use of the Feature, including the actions of Users, and when using the Feature You shall abide, and shall be responsible for assuring that all Users abide, by all applicable laws, treaties and regulations in connection with such use of the Feature, including those related to confidentiality, trade secrets, data privacy and protection, international communications and the transmission of technical or Personal Data.

2.2. 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) suspend all User accounts for individuals who are no longer authorized to access those accounts, and (iii) generally, comply with any instructions concerning access to and/or use of the Feature that Panaya may give from time to time.

  1. Indemnification

You shall indemnify Panaya and its affiliates, directors, offices, employees, agents, contractors, successors or assignees, and shall hold them harmless against all claims, liabilities damages and expenses (including reasonable attorney’s fees) arising out of claims of third parties (including Users) based on or related to the use of the Feature and/or the Recorded Data, including any claim that the use of the Feature and/or Recorded Data breaches any applicable law, treaties or regulation (including, without limitation any laws, treaties or regulation related to confidentiality, trade secrets, data privacy and protection, international communications and the transmission of technical or Personal Data).

  1. Term

The Feature shall be made available to You for the duration of the Subscription Period set forth in the Subscription Documents, provided that either Panaya or You may at any time immediately terminate Your and all Users’ access to the Feature. At Your request, Panaya shall delete the Recorded Data.

  1. Miscellaneous

5.1. Except to the extent specifically modified in this Exhibit, all the terms and conditions of the Subscription Documents shall remain in full force and effect and shall apply with respect to the Feature.

5.2. This Exhibit forms an integral part of the Agreement. In the event of any inconsistency or contradiction between the provisions of this Exhibit and the provisions of any of the Agreement, the provisions of this Exhibit will prevail with respect to the subject matter of such inconsistency or discrepancy.

5.3. Unless otherwise expressly stated, capitalized terms used in this Exhibit shall have the meaning assigned to them in the Subscription Documents.

 

 

EXHIBIT A

DATA PROCESSING AGRREMNT