These Terms of Service take effect on the earlier of: when Customer clicks the “I accept” button or check box presented with these Terms of Service or, when Customer uses any of the Services. You represent and warrant that you have full legal authority to bind Customer to these Terms of Service.
In the event that these Terms of Service conflict with the provisions of any purchase order (“PO“), the provisions of these Terms of Service shall prevail unless Panoply and Customer expressly agree otherwise in writing and signed by both parties.
Panoply may update these Terms of Service from time to time and will notify Customer of such updates either via email or by posting notice of such changes on its website, or by any other reasonable means. Customer’s continued use of the Services after Panoply’s provision of a notice of an updated version of the Terms of Service shall constitute Customer’s consent to such updated Terms of Service.
- Customer Access to and Use of the Services. Customer may access and use the Services and the Website solely subject to and in accordance with these Terms of Service. Customer will comply with all applicable laws, rules, and regulations in connection with Customer’s use of the Services and the Website. As used in these Terms of Service, the term “Services” means the automated data warehouse services made available by Panoply to Customer together with any other product or service that may be provided by Panoply to Customer from time to time under these Terms of Service.
- Customer Account. Customer shall be solely responsible for (i) its employees, subcontractors or anyone else engaged by Customer (collectively, “Representatives“), access to and use and security of: (i) Customer’s account associated with the Services (“Account”), (ii) data and other content uploaded by Customer and/or its Representatives for processing by the Services (“Customer Data”), and (iii) results of the Services (“Customer Results”, and together with the Customer Data, “Customer Content”).
- Customer Content. As between the parties, Customer or its licensors owns all right, title and interest in and to Customer Content. Customer consents to the access and use by Panoply and its Third Party Service Providers of Customer Content, solely to provide the Services and in accordance with these Terms of Service. In addition, Customer grants Panoply the right to use Customer’s name, mark and logo on the Website and in any Panoply publication or marketing materials, to identify Customer as a Panoply customer. Any other use of Customer’s name, mark or logo shall require the express written consent of Customer.
- Responsibility for Customer Content and Copyright Protection. Customer shall be solely responsible for the legality and appropriateness of all Customer Content and for compliance with all laws and regulations applicable to Customer Content, including without limitation any import, re-import, export, or re-export control laws or regulations, copyright laws or regulations, and privacy protection laws and regulations that apply specifically to Customer and which are not generally applicable to personal data. Without derogating from the generality of the foregoing, Panoply does not monitor Customer Content, and Customer is solely responsible for monitoring Customer Content and for properly handling and processing notices sent to Customer (including any of its affiliates) by any person claiming that Customer Content violates such person’s rights including notices pursuant to the Digital Millennium Copyright Act.
- No Sensitive Data. Customer agrees and warrants that it shall not upload to the Services any Customer Data that may constitute a special category of data such as sensitive personal data (including without limitation personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, criminal convictions, health, or sex life)pursuant to any applicable information security, data protection, privacy and/or other statute, act, law, regulation or directive, or any Customer Data that constitutes protected health information (as defined in the United States HIPPA or other similar statutes) or any bank account, credit card, social security or other identifying governmental numbers as set forth in the Graham-Leach Bliley Act or other similar statutes.
- Availability of the Services. Panoply will make commercially reasonable efforts to: (i) maintain a 90% dashboard uptime and 98% data warehouse uptime, (ii) provided a Resolution to Critical Errors within 4 business hours of Panoply’s receipt of an error call, and (iii) resolve all other bugs and Errors within 7 days of Panoply’s receipt of an error call. “Critical Error” means a condition resulting in the inability of Customer to obtain Customer Results. “Error” means a condition that: (A) meets the definition of Critical Error, but that can be circumvented or avoided on a temporary basis, or (B) results in the Services being or performing outside the specified functionality but is not a Critical Error. “Resolution” includes a resolution that is a work-around or emergency fix. If the Critical Error can be circumvented or avoided on a temporary basis the severity classification will drop to Error.
- Customer Content Security. Without limiting Section 21 or Customer’s obligations under Sections 4 and 5, Panoply will implement commercially reasonable security measures designed to protect the Customer Content against accidental or unlawful loss, alteration, access or disclosure.
- Fees and Interest. Customer shall pay Panoply the fees set forth in the relevant PO (“Fees”) within ten (10) days of date of invoice. Invoicing shall be done on or prior to the beginning of the Initial Term (as defined below) or applicable Additional Term (as defined below) (“Invoice Period”). Customer is responsible for paying the full amount of the Fees for each Invoice Period, whether or not Customer actually uses the Services during all or part of such Invoice Period. Accruing from the due date of payment, Panoply is entitled to charge interest at the lower of: (i) 1% compounded interest per month, and (ii) the maximum interest rate permitted by applicable law.
- Taxes. Fees do not include taxes, levies or duties of any nature. Customer is responsible for all applicable taxes, levies or duties arising in connection with the Services when invoiced by Panoply or will supply appropriate tax exemption certificates to Panoply in a form satisfactory to Panoply. If any deduction or withholding is required by law, Customer will notify Panoply in writing and will pay Panoply all additional amounts necessary to ensure that the net amount that Panoply receives after any deduction and withholding equals the amount Panoply would have received if no deduction or withholding had been required.
- Right to Terminate or Suspend Services. If Panoply believes at its sole discretion there may have been or may be a violation of Customer’s warranties or obligations under these Terms of Service, Panoply is authorized in its sole discretion and without any liability to monitor Customer’s compliance, to immediately suspend or terminate the provision of Services to Customer, and/or to block the transmission of Customer Content which in Panoply’s reasonable opinion could violate applicable law, violate the rights of others, or subject Panoply to liability. In addition, if Panoply believes at its sole discretion that any Customer Content may have been or is at risk of being accessed by a third party without authorization, Panoply may take such Customer Content offline until the intrusion is resolved.
- Term. Unless otherwise set forth in the relevant PO, these Terms of Service will commence as of the Effective Date and will continue until the end of the next Quarter (a “Quarter” being a three-month period ending on March 31, June 30, September 30, or December 31) (“Initial Term”). At the conclusion of the Initial Term these Terms of Service will automatically renew for additional terms of one Quarter each (each an “Additional Term”, and along with the Initial Term, the “Term”) unless earlier terminated as set forth in these Terms of Service.
- Termination. Either party may suspend or terminate these Terms of Service at any time and for any reason upon providing thirty (30) days prior written notice to the other party. In addition, Panoply may terminate these Terms of Service immediately and without liability upon providing notice to Customer: (i) if Panoply believes that Customer has violated any provision of these Terms of Service or applicable law, (ii) if Panoply is threatened with a legal claim related to the provision of the Services, (iii) if Panoply’s relationship with a Third Party Services Provider terminates or requires Panoply to change, suspend or terminate the Services, (iv) if Panoply believes providing the Services could create a substantial economic or technical burden or material security risk, (v) in order to comply with applicable law or requests of governmental entities, or (vi) if Panoply determines that the use of the Services by Customer or Panoply’s provision of any of the Services has become impractical or unfeasible.
- Effect of Termination. Upon termination of these Terms of Service Panoply will provide Customer with reasonable access to, and the ability to extract, Customer Content for a period of 7 days of the effective date of termination. Following such 7 day period, Panoply will delete Customer Content and Customer’s access to the Services. The provisions of Sections 3 -5 (inclusive), 8 – 9 (inclusive), 13 – 16 (inclusive), and 18-29 (inclusive) shall survive termination of these Terms of Service for any reason.
- Customer Representations and Warranties. Customer represents and warrants to Panoply that: (i) Customer has the requisite power and authority to enter into these Terms of Service and to perform all of its obligations under these Terms of Service, (ii) all Account information Customer has provided Panoply for the purpose of receiving the Services is complete and accurate, and Customer shall update its Account information to maintain the accuracy thereof throughout the Term, (iii) if Customer makes use of software not provided by Panoply, Customer has a written license agreement permitting Customer to use such software in connection with the Services, and Panoply shall have no responsibility for any liability or any problems caused to the Services in connection with Customer’s use of any such software, and (iv) Customer is and will remain throughout the Term in compliance with all applicable information security, data protection, privacy and/or other statutes, acts, laws, regulations and directives relating to its use of the Services.
- Panoply Representations and Warranties. Panoply represents and warrants to Customer that Panoply has the requisite power and authority to enter into these Terms of Service and to perform all of its obligations under these Terms of Service.
- Panoply’s Ownership. Panoply or its licensors own and reserve all rights, title and interest in and to the Services, the Website, Panoply’s trademarks and service marks and all modifications to any of the forgoing, and all related worldwide intellectual property rights, whether registered or not and whether registerable or not.
- Customer’s License. In consideration for Customer’s full and punctual payment of the Fees (as defined below) and subject to Customer’s ongoing compliance with these Terms of Service, Panoply hereby grants Customer a limited, non-exclusive, non-transferable and non-sublicenseable license to access and use the Services.
- Restrictions. Customer may not use the Services in any manner or for any purpose other than for its own internal use and as expressly permitted by these Terms of Service. Customer may not, and may not attempt to, and will not allow third parties to: (i) modify, alter, tamper with, repair, or otherwise create derivative works of any software included in the Services, (ii) reverse engineer, disassemble, or decompile the Service or apply any other process or procedure to derive the source code of any software included in the Services, (iii) create multiple Accounts to simulate or act as a single Account or otherwise access the Services in a manner intended to avoid incurring Fees or otherwise breach these Terms of Service, (iv) resell, sublicense, or otherwise allow a third party’s access to the Services, (v) copy any ideas, features, functions or content of the Services (other than Customer Content), or use the Services to create a competitive product or service, (vi) remove, alter or obscure any proprietary notices contained on or within the Services or the Website, (vii) monitor the availability, performance or functionality of the Services, or (viii) gain or attempt to gain unauthorized access to Panoply’s systems or network. Customer shall be fully responsible for its Representatives’ adherence to these Terms of Service. As a condition to making the Services available to Customer, Customer undertakes that it will not assert, authorize, assist or encourage any third party to assert against Panoply or its licensors, affiliates or users, any infringement or other claim in connection with the Services.
- Suggestions. Should Customer provide Panoply with any ideas, feedback or suggestions (“Suggestions”) regarding the Services, including without limitation, bug fixes or improvements, Panoply will irrevocably own all right, title and interest in and to the Suggestions and will be free to use the Suggestions without any liability or payment to Customer and without Customer’s prior written consent. Customer hereby irrevocably assigns to Panoply all right, title and interest in and to Suggestions and agrees to provide Panoply with such reasonable assistance required in order to document, perfect and maintain Panoply’s rights in and to the Suggestions, at Panoply’s cost.
- Confidentiality. Customer agrees to hold in confidence and not to use or disclose any of Panoply’s Confidential Information except solely for the purpose of Customer’s authorized use of the Services in accordance with these Terms of Service. “Confidential Information” means the pricing terms contained in these Terms of Service and any and all non-public data or information, including all third party data or information, disclosed by or on behalf of Panoply to Customer in connection with the Services.
- Disclaimer of Warranties. EXCEPT AS EXPRESSLY SPECIFIED IN THESE TERMS OF SERVICE, THE SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. PANOPLY MAKES NO EXPRESS, IMPLIED, STATUTORY OR OTHER WARRANTIES, REPRESENTATIONS OR GUARANTEES OF ANY KIND IN CONNECTION WITH THE SERVICES OR THE THIRD PARTY SERVICES, INCLUDING WITHOUT LIMITATION ANY WARRANTY, REPRESENTATION OR GUARANTEE THAT THE SERVICES OR THE THIRD PARTY SERVICES WILL BE UNINTERRUPTED, ERROR FREE, FREE OF HARMFUL COMPONENTS, OR THAT ANY DATA OR RESULTS, INCLUDING WITHOUT LIMITATION CUSTOMER CONTENT, WILL BE SECURE OR NOT LOST OR DAMAGED. WITHOUT DEROGATING FROM THE GENERALITY OF THE FOREGOING, PANOPLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. CUSTOMER ACKNOWLEDGES THE RISKS INHERENT IN INTERNET CONNECTIVITY AND BIG DATA ANALYSIS AND PROCESSING THAT COULD RESULT IN THE LOSS OF CUSTOMER’S OR THIRD PARTIES’ PRIVACY, DATA, RESULTS, CONFIDENTIAL INFORMATION AND PROPERTY. CUSTOMER ACKNOWLEDGES THAT THE SERVICES ARE NOT INTENDED FOR USE IN CONNECTION WITH THE OPERATION OF NUCLEAR FACILITIES, AIR TRAFFIC CONTROL OR LIFE SUPPORT SYSTEMS, WHERE THE USE OF OR FAILURE OF THE SERVICES COULD LEAD OR CONTRIBUTE TO DEATH, PERSONAL INJURY OR ENVIRONMENTAL DAMAGE.
- Limitation of Liability. IN NO EVENT SHALL PANOPLY BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS, LOSS OF DATA, LOSS OF USE, LOSS OF BUSINESS OPPORTUNITY OR CLAIMS OF THIRD PARTIES), REGARDLESS OF THE CAUSE OF ACTION (INCLUDING WITHOUT LIMITATION CONTRACT OR TORT), EVEN IF ADVISED OF THE POSSIBILITY OF DAMAGES AND EVEN IF DAMAGES ARE FORESEEABLE. WITHSTANDING ANY OTHER PROVISION IN THESE TERMS OF SERVICE, THE MAXIMUM AGGREGATE LIABILITY OF PANOPLY, AND ITS OFFICERS, DIRECTORS, EMPLOYEES, ADVISORS AND REPRESENTATIVES, TO CUSTOMER AND ALL THIRD PARTIES, UNDER ANY CAUSE OF ACTION, SHALL NOT EXCEED THE FEES ACTUALLY RECEIVED BY PANOPLY FROM CUSTOMER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST OCCURRENCE OF AN EVENT GIVING RISE TO A CLAIM. THIS IS AN AGGREGATE LIMIT AND THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS LIMIT. CUSTOMER ACKNOWLEDGES THAT THIS FOREGOING LIMITATION OF LIABILITY IS AN ESSENTIAL PART OF THESE TERMS OF SERVICE AND ABSENT SUCH LIMITATION PANOPLY WOULD NOT PROVIDE THE SERVICES TO CUSTOMER OR ENTER INTO THESE TERMS OF SERVICE.
- Third Party Services. Certain components of the Services are services provided by third party service providers (respectively, “Third Party Services” and “Third Party Providers“). NOTWITHSTANDING ANY OTHER TERM IN THESE TERMS OF SERVICE, PANOPLY SHALL BE RESPONSIBLE TO CUSTOMER FOR THIRD PARTY SERVICES ONLY TO THE SAME EXTENT THAT THE RELEVANT THIRD PARTY PROVIDER IS RESPONSIBLE TO PANOPLY FOR THE PROVISION OF SUCH THIRD PARTY SERVICES. Panoply may at any time and in Panoply’s sole discretion use or replace Third Party Services and Third Party Providers.
- Indemnification. Customer will defend, indemnify, and hold harmless Panoply and its licensors, and each of their respective officers, directors, employees, advisors and representatives, from and against any claims, damages, losses, liabilities, costs, fines and expenses (including attorneys’ fees) arising out of or relating to: (i) Customer’s actual or alleged breach of any provisions of these Terms of Services or of any applicable law, (ii) any activities held under Customer’s Account, including by unauthorized third parties; or (iii) Customer Content or the combination of Customer Content with other applications, content or processes, including any claim involving actual or alleged infringement or misappropriation of third party rights arising out of or in connection with Customer Content and including any actual or alleged claim that appropriate consents were not obtained from data subjects to the collection or processing of their personal data. Panoply shall notify Customer of any claim subject to indemnification, provided that Panoply’s failure to do so shall not affect Customer obligations hereunder, except to the extent that Panoply’s failure to promptly notify Customer materially delays or prejudices Customer ability to defend the claim. At Panoply’s option, Customer will have the right to defend against any such claim with counsel of Customer’s choosing (subject to Panoply’s written consent) and to settle such claim as Customer deem appropriate, provided that Customer shall not enter into any settlement without Panoply’s prior written consent and provided that Panoply may at any time elect to take over control of the defense and settlement of the claim upon written notice to Customer.
- Force Majeure. In the event that either party shall be delayed or prevented from the performance of any obligation hereunder by reason of strike, labor trouble, inability to procure materials, power failure, government or judicial order, riot, insurrection, declared or undeclared war, terrorist act, weather or other Act of God, or any other reason beyond such party’s control, then performance of such party’s obligations under these Terms of Service shall be excused for the period of such delay. The party affected by Force Majeure shall provide notice to the other party of the commencement and termination of the Force Majeure.
- US Government Rights. If Customer is using the Services on behalf of the US Government, the Services, any related software and related documentation are provided to the US Government as “commercial items”, “commercial computer software”, “commercial computer software documentation” and “technical data” with the same rights and restrictions generally applicable to the Services, and if these terms fail to meet the US Government’s needs or are inconsistent in any respect with federal law, Customer will immediately discontinue Customer’s use of the Services. The terms “commercial items”, “commercial computer software”, “commercial computer software documentation” and “technical data” are defined in the Defense Acquisition regulation and the Defense Federal Acquisition Regulation Supplement.
- No Third Party Beneficiary. These Terms of Service do not create any third party beneficiary rights in any individual or entity that is not a party to these Terms of Service.
- Miscellaneous. These Terms of Service, together with the Subprocessing Agreement to the extent applicable and entered into between Customer and Panoply, constitute the entire agreement between Customer and Panoply. These Terms of Service shall be governed by the internal laws of the State of Israel without regard of its conflict of laws rules, and the parties hereby submit to the exclusive jurisdiction of the courts of Tel Aviv, Israel in connection with any dispute in connection with these Terms of Service, provided that Panoply shall be entitled to institute an action in any court of competent jurisdiction to obtain injunctive relief or otherwise protect or enforce its intellectual property rights or interests. All rights are cumulative. Panoply may freely assign any of its rights and obligation under these Terms of Service. Customer may not assign these Terms of Service without the prior written consent of Panoply. No delay or failure to take any action with respect to any breach of these Terms of Service shall constitute a waiver of such breach or any subsequent or other breach. All waivers must be in writing to be effective. If any provision of these Terms of Service is declared invalid or unenforceable, the remaining provisions of these Terms of Service shall not be affected thereby, and shall remain in full force.