ENTERPRISE SUBSCRIPTION AGREEMENT
This Enterprise Subscription Agreement (the “ESA”), dated as of the date of last signature below (the “Effective Date”), is entered into between Panther Labs Inc., a Delaware corporation, with an address at 440 N Barranca Ave #8909, Covina, CA 91723 (“Panther”), and the entity placing an order (“Customer”) for the Panther Offerings listed on the order form that references this Enterprise Subscription Agreement (the “Order Form”). Each of Panther and the Customer may be referred to as a “Party” or together, the “Parties”. The “Agreement” is comprised of: (a) the terms and conditions of the ESA, (b) any documents or exhibits referenced in this Enterprise Subscription Agreement, and (c) any Order Form(s) that references this ESA.
1. Agreement
1.1. Definitions are set forth in Section 14 below.
1.2. Affiliates. Customer’s Affiliates may purchase access to and use of Panther Offerings by executing an Order Form referencing this Agreement and specifying to which Subscription Service(s) access is to be given. Each such Order Form establishes a new and separate agreement between the Customer Affiliate signing such Order Form and Panther. All such Order Forms will be governed by the terms of this Agreement and references to the “Customer” in the Agreement will mean the Customer Affiliate.
1.3. Order Form. The Agreement governs all Order Forms that reference the Agreement. Each Order Form shall specify the specific Subscription Services to be provided to Customer, as well as any other details regarding the Subscription Services purchased thereunder. Order Forms must be executed by Panther and the Customer. If Customer is purchasing through a reseller, the Order Form must be executed by a reseller who is authorized by Panther to resell the Subscription Services to the Customer and the Customer must also agree in writing to accept the terms of this Agreement.
2. Access to Subscription Services; Support; Availability
2.1. Access. Subject to Customer’s compliance with this Agreement and the Documentation, including its payment obligations set forth herein, Panther will make the Panther Offerings set forth in the relevant Order Form available to Customer for the duration of the Subscription Term solely for use by Customer and its Users, in accordance with the terms and conditions of this Agreement. All use of the Panther Offerings by Customer and each User is solely for the internal business purposes of Customer. Customer shall be responsible for each User’s compliance with this Agreement.
2.2 Compliance with Law. Panther will provide the Subscription Services in compliance with all laws applicable to the provision of such services to its customers generally. Customer shall ensure that its use of Panther Offerings is in compliance with all laws applicable to the use of such services, including, but not limited to, applicable data privacy laws.
2.3 Support Services. During the Subscription Term, Panther will provide Customer with informational and technical support concerning use of the Subscription Services in accordance with the Documentation as well as the support services described at panther.com/sla, Section 1 (the “Support Services”). In order for Panther to provide Support, Customer will provide Panther with sufficient access to Customer’s infrastructure and Customer Data. Depending on the Panther Offering, this may include, but is not limited to, Customer’s relevant AWS and Snowflake instances so that Panther may create a user account within such instances in order to provide Support Services. Support Services cannot be provided if Panther’s access to the Customer’s infrastructure and/or Customer’s instance of the relevant Panther Offerings is limited or removed.
2.4 SLA. During the Subscription Term, provided that Panther is given sufficient access to Customer’s infrastructure and instance(s) as set forth in Section 2.3 and the Documentation, Panther will provide uptime commitments for the applicable Subscription Services in accordance with the service levels described at panther.com/sla, Section 2.
2.5 Improvements. Panther continually strives to improve its products and services and reserves the right to improve or modify the Subscription Services in any manner and at any time, including during the Subscription Term, at Panther’s sole discretion (in which case Panther may update the applicable Documentation accordingly); provided however that such improvements and modifications will not materially reduce the functionality of the Subscription Services.
2.6 Professional Services. Panther shall provide to Customer certain implementation and professional services (“Professional Services”) as more specifically set forth in the applicable Statement of Work (“SOW”), attached to this Agreement or the relevant Order Form. Terms of the Professional Services are set forth on the Professional Services Attachment attached hereto as Exhibit A and made a part of this Agreement.
2.7 AI Learning. In order to provide a better user experience, Panther is offering to its customers the option of utilizing an AI Feature available through the Subscription Services. Use of the AI Feature is optional, but if Customer chooses to take advantage of the AI Feature, the AI terms set forth in Exhibit B shall apply.
2.8 Trial Services. If Customer registers or accepts an invitation for Trial Services, including through Panther’s website, or executes an Order for the same, Panther will make such Trial Services available to Customer as a SaaS product on a trial basis, free of charge under these terms, except as set forth in this Section 2.6, until the earlier of (a) the end of the free trial period for which Customer registered to use the applicable Trial Services, (b) the end date specified in the applicable Order, or (c) upon either party’s notice to the other party that such party wishes to terminate the Trial Services. Trial Services are provided for evaluation purposes in a non-production environment and may not be implemented for production use. Customer shall have sole responsibility and Panther assumes no liability for any Customer Data that Customer may choose to upload on the Trial Services. Trial Services may contain bugs or errors, and may be subject to additional terms. TRIAL SERVICES ARE NOT CONSIDERED “SUBSCRIPTION SERVICES” HEREUNDER AND ARE PROVIDED “AS IS” WITH NO EXPRESS OR IMPLIED WARRANTY AND NO INDEMNITIES. Support Services for Trial Services are provided “as is” and “as available.” Customer agrees to the receipt of marketing and informational support services email communications from Panther while using the Trial Services. Panther may, in its sole discretion, discontinue Trial Services at any time.
3. Security and Data Privacy
3.1 Security and Internal Controls. In accordance with Panther’s Security Annex available at panther.com/security-annex, as updated from time-to-time and incorporated herein by reference, Panther shall (a) maintain a security framework of policies, procedures, and controls that includes administrative, physical, and technical safeguards for protection of the security and integrity of the Subscription Services using the capabilities of currently available technologies and in accordance with prevailing industry practices and standards, (b) access and use the Customer Data solely to perform its obligations in accordance with the terms of the Agreement and the Documentation, and (c) perform periodic testing of the Panther Offerings by independent third-party audit organizations, such as Service Organization Controls 2 (SOC 2) audits or penetration testing performed annually. It is understood and agreed that when Panther is deployed within a Customer’s environment (such as AWS or Snowflake, for example), Panther shall have no obligations or liability with respect to the security, integrity, or security of the environment in which the Subscription Services are used. In all cases, Customer controls the extent to which Panther is granted access to Customer Data and Panther shall take no responsibility and shall have no liability to Customer for any inadvertent access Panther may have to Customer Data. Customer shall take all steps necessary to ensure the security and integrity of its own environments in which the Panther Subscription Services are provided.
3.2 Panther Breach Response. Panther will notify Customer without undue delay, and in any event within forty-eight (48) hours, after determining a Security Breach of Panther’s internal network has occurred. Panther will take all actions related to its security measures that it deems necessary and advisable to identify and remediate the cause of the Security Breach. In addition, Panther will promptly provide Customer with: (a) reasonable cooperation and assistance with regard to the Security Breach, (b) reasonable information in Panther’s possession concerning the Security Breach insofar as it affects Customer, including remediation efforts and any notification to government authorities, and (c) to the extent known, the possible cause of the Security Breach and the categories of Customer Data involved.
3.3 Customer Breach Response. Customer will notify Panther without undue delay, and in any event within forty-eight (48) hours, after determining a Security Breach of Customer’s AWS or Snowflake instance on which Subscription Services have been implemented has occurred. Customer will take all actions related to its security measures that it deems necessary and advisable to identify and remediate the cause of the Security Breach. In addition, Customer will promptly provide Panther with: (a) reasonable cooperation and assistance with regard to the Security Breach, (b) reasonable information in Customer’s possession concerning the Security Breach insofar as it affects Panther, including remediation efforts and any notification to government authorities, and (c) to the extent known, the possible cause of the Security Breach.
3.4 DPA. To the extent applicable, the parties shall comply with the DPA as defined in the Definitions Section below.
4. Customer Obligations
4.1 Restrictions. Customer shall not, and shall ensure that all of its Users do not: (a) license, sublicense, sell, resell, rent, lease, transfer, distribute or otherwise similarly exploit or provide access to the Subscription Services to any third party (except as set forth in the Documentation for the Subscription Services features expressly intended to enable Customer to provide third parties with access to Customer Data); (b) use or permit others to use any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Subscription Services or conduct any stress testing, competitive benchmarking or analysis on, or publish any competitive data on the Panther Offerings; (c) copy, modify, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Subscription Services or any part thereof or otherwise attempt to discover any source code or non-public APIs to the Subscription Services; (d) disclose any benchmark or performance tests of the Subscription Services; (e) use the Subscription Services to build a competitive product or service; or (f) remove or obscure any proprietary or other notices contained in the Subscription Services.
4.2 Customer Data. Customer shall create a unique environment in which the Cloud Connected, Panther Cloud Connected, Panther Snowflake Connected, or Panther AWS Connected Subscription Services are implemented. Access to Customer Data is controlled by Customer. Panther shall be given sufficient access into the relevant accounts in order to provide Subscription Services to Customer. Customer shall ensure that it restricts Panther access to only that Customer Data which Customer intends to provide to Panther. Customer shall remain responsible and shall retain all liability in the event that Panther is granted access to Customer Data inadvertently.
4.3 Panther Access. Customer shall ensure that Panther continues to have sufficient access to Customer’s allocated AWS and/or Snowflake environments utilizing the Subscription Services and such access may not be removed unless and until Panther has confirmed that the Subscription Services have been removed from Customer’s environment. Customer shall have no right to use the Panther Offerings beyond the scope of the Agreement or after termination or expiration of the Subscription Term.
5. Fees and Payments
5.1 Fees and Overages.
5.1(a) Fees. Pricing for Subscription Services will include three (3) separate SKUs, (a) Platform Subscription (including onboarding and support), (b) Terabyte Ingestion of Customer Data; and (c) Infrastructure Cost (applicable only for SaaS Customers). Customer shall pay all fees specified in each Order Form. Except as otherwise specified herein or in an Order Form: (a) fees are payable in United States dollars; (b) fees are based on Subscription Services purchased, regardless of non-usage of the Subscription Services; and (c) payment obligations are non-cancelable and fees paid are non-refundable. All amounts payable under the Agreement will be made without setoff or counterclaim, and without any deduction or withholding.
5.1(b) Audits; Overages. Fees for Subscription Services are set forth on the Order Form, based on an estimate of the maximum quantity of Customer Data that will be processed during each year of the Term of the relevant Order Form (the “Permitted Maximum”). Customer is responsible to ensure that its actual usage does not exceed the Permitted Maximum as set forth in the Order Form. The Parties will continuously monitor usage during the Subscription Term and Panther will make commercially reasonable efforts to notify Customer when it appears that it may prematurely utilize of the annual Permitted Maximum. As consumption approaches the Permitted Maximum, the Parties shall discuss options for continued use Panther provide Customer with a monthly report, documenting the Customer’s infrastructure usage for the previous month and showing the Customer it’s total usage against the amount of purchased Subscription Services.
5.1(c) Overage Fees. Panther reserves the right to charge the Customer for any excess infrastructure usage either during the term or at renewal, at Panther’s option. When Customer’s usage exceeds 110% of the Permitted Maximum, Panther will notify Customer of the excess (such excess, the “Overage”), then Customer shall have the right to either reduce the current usage to the Permitted Maximum or pay Panther to true up the costs for the Overage. Panther will continue to true up and invoice customer for the Overages on a quarterly basis. Invoices shall be issued and payments are due thirty (30) days from receipt of invoice.
5.1(d) Underages. If, after the first year of the Term of a multi-year Order Form, Customer has not processed the estimated Permitted Maximum for the first year, usage credits will be applied to the remainder of the Term. If Customer has used less than 90% of the Permitted Maximum, customer will be eligible to apply to its next renewal, a credit equal to the amount of unused infrastructure spend, provided that Customer renews at least the same Subscription Services and the same quantity without additional discounts. . Panther has no obligations to provide any credits if Customer purchases different Subscription Services or a reduced infrastructure spend.
5.2 Invoicing and Payment.
5.2(a) Subscription Services. Unless otherwise specified in an Order Form, fees for Subscription Services specified in an Order Form will be invoiced annually in advance. Customer and/or Reseller, as applicable, agrees to pay all invoiced amounts for Subscription Services within thirty (30) days of invoice date.
5.2(b) Late payment. If Customer fails to pay any amounts due under the Agreement by the due date, in addition to any other rights or remedies it may have under the Agreement or by matter of law (i) Panther reserves the right to suspend the Subscription Services upon thirty (30) days’ notice, until such amounts are paid in full, and (ii) Panther will have the right to charge interest at a rate equal to the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law until Customer pays all amounts due.
5.3 Payment Disputes. Panther will not exercise its rights under Section 12.3 (Termination for Cause) or Section 5.3(b)(i) (suspension of Subscription Services) to the extent such non-payment by Customer is for charges reasonably disputed in good faith provided that Customer is cooperating diligently to resolve the dispute. If the parties are unable to resolve such a dispute within thirty (30) days, each party shall have the right to seek any remedies it may have under the Agreement, at law or in equity, irrespective of any terms that would limit remedies on account of a dispute. For clarity, all undisputed amounts must be paid in full when due.
5.4 Taxes. The Fees exclude all Taxes imposed with respect to Customer’s purchases under the Agreement. Customer is responsible for payment of all Taxes arising from Customer’s purchases under the Agreement. If Panther is required to directly pay or collect Taxes related to Customer’s purchases under the Agreement, then Customer agrees to promptly reimburse Panther for any amounts paid by Panther.
5.5 Reseller Orders. Customer may procure certain Panther Offerings through a Reseller; provided, however, that Panther will only be obligated to provide the Panther Offerings to Customer through a Reseller if Panther and Reseller have executed an Order Form for such purchase. Customer acknowledges and agrees that, solely in connection with the purchase by Customer through a Reseller: (a) Panther may share information with Reseller related to Customer’s use and consumption of the Panther Offerings; (b) notwithstanding anything to contrary in this Agreement, references to “Customer” in each of the defined terms “Fees” and “Order Form” in this Agreement shall be replaced with “Reseller,” and all payments of fees, refunds and credits, if any, are payable by or to the Reseller; (c) this Agreement governs Customer’s use of the Panther Offerings, notwithstanding anything to the contrary in the agreement between Reseller and Customer; and (d) Reseller is not authorized to make any changes to this Agreement or otherwise authorized to make any warranties, representations, promises or commitments on behalf of Panther or in any way concerning the Panther Offerings.
6 Customer Data
6.1. Ownership. As between the parties, Customer or its licensors retain all right, title and interest (including all IPR) in and to the Customer Data and any modifications made thereto in the course of operation of the Subscription Services.
6.2 License Grant. Subject to the terms of the Agreement, Customer hereby grants to Panther and its Affiliates a non-exclusive, worldwide, royalty-free right to process the Customer Data solely to the extent necessary to provide the Panther Offerings to Customer, to prevent or address service or technical problems in the Panther Offerings, or as may be required by law.
6.3 Customer Responsibilities. Customer has and shall maintain all rights as are required to allow Panther to access, use, and store Customer Data to provide the Panther Offerings to Customer as set forth in the Agreement. Customer is solely responsible for the accuracy, content and legality of all Customer Data.
6.4 Customer-Controlled Data Sharing. The Subscription Services may include integrations to facilitate Customer’s exchange, at Customer’s sole discretion, of Customer Data between Third-Party Applications and the Subscription Services. Customer acknowledges and agrees that Panther has no control over, and will have no liability for, any acts or omissions of providers of Third-Party Applications or for Third-Party Applications.
7. Intellectual Property
7.1 Panther Technology. Customer agrees that Panther or its suppliers retain all right, title and interest (including all IPR) in and to the Panther Technology. Except for the express limited rights set forth in this Agreement, no right, title or interest in any Panther Technology is granted to Customer. Further, Customer acknowledges that the Subscription Services are offered as an online, hosted solution, and that Customer has no right to obtain a copy of the underlying computer code for the Subscription Services. Notwithstanding anything to the contrary herein, Panther may freely use and incorporate any Feedback into Panther Offerings.
7.2. Usage Data. Notwithstanding anything to the contrary in the Agreement, Panther may collect and use Usage Data for Support Services purposes, security and operations management purposes, to create statistical analyses, and for research and development purposes. Panther may include Usage Data in its marketing materials and industry white papers.
8. Confidentiality
8.1 Definition. “Confidential Information” means all confidential or proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or reasonably should be understood to be confidential given the nature of information and the circumstances of disclosure. Without limiting the coverage of these confidentiality obligations, the Parties acknowledge and agree that Confidential Information of each party shall include the terms and conditions of the Agreement (including pricing and other terms set forth in all Order Forms), related benchmark or similar test results, other technology and technical information, security information, and security audit reports. Customer Data is the Confidential Information of Customer. Confidential Information shall not include information that (a) is or becomes publicly available without a breach of any obligation owed to the Disclosing Party, (b) is already known to the Receiving Party at the time of its disclosure by the Disclosing Party, without a breach of any obligation owed to the Disclosing Party, (c) following its disclosure to the Receiving Party, is received by the Receiving Party from a third party without breach of any obligation owed to Disclosing Party, or (d) is independently developed by Receiving Party without reference to or use of the Disclosing Party’s Confidential Information.
8.2 Protection of Confidential Information. The Receiving Party shall use the same degree of care used to protect the confidentiality of its own Confidential Information of like kind (but in no event less than reasonable care), and, except with Disclosing Party’s written consent, shall (a) not use any Confidential Information of Disclosing Party for any purpose outside the scope of the Agreement and (b) limit access to Confidential Information of Disclosing Party to its employees, authorized contractors and agents who need such access for purposes consistent with the Agreement and who have a duty or obligation of confidentiality no less stringent than that set forth herein.
8.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent required by applicable law, regulation or legal process, provided that the Receiving Party (a) provides prompt written notice to the extent legally permitted, (b) provides reasonable assistance, at Disclosing Party’s cost, in the event the Disclosing Party wishes to oppose the disclosure, and (c) limits disclosure to that required by law, regulation or legal process.
8.4 Equitable Relief. Notwithstanding the foregoing, the parties acknowledge that any unauthorized disclosure of Confidential Information or any actual or alleged infringement of such party’s or third party’s IPR might cause the other party to suffer irreparable harm for which damages would be an inadequate remedy and that, in such event, the aggrieved party may seek, in addition to any other available remedies, injunctive and other equitable relief in any state, federal or national court of competent jurisdiction, without bond and without the necessity of showing actual monetary damages.
9. Warranties; Disclaimers
9.1 Mutual Warranty. Each party represents and warrants that it has the full right and authority to enter into, execute, and perform its obligations under the Agreement.
9.2 Customer Warranty. Customer represents and warrants that Customer has and will have sufficient rights in the Customer Data to grant the rights to Panther under the Agreement and that the processing of Customer Data by Panther as permitted under the Agreement will not violate any laws or the rights of any third party.
9.3 Panther Warranties. Panther represents and warrants that, provided that Customer complies with the Agreement and the Documentation: (a) the Subscription Services will operate in material conformity with the relevant Documentation and (b) the Support Services will be provided in a professional and workmanlike manner. This warranty will not apply if the error or non-conformance was caused by misuse of the Subscription Services. Panther shall use reasonable commercial efforts to correct any reported non-conformity with this warranty, at Panther’s sole expense. If Panther is not able to correct any reported non-conformity with this warranty, then either party may terminate the applicable Order Form and Customer, as its sole remedy, will be entitled to receive a pro-rata refund of any prepaid Fees for unused Subscription Services.
9.4 Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, EACH PANTHER OFFERING IS PROVIDED “AS IS,” AND PANTHER MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. PANTHER DOES NOT WARRANT THAT THE USE OF ANY PANTHER OFFERING WILL BE UNINTERRUPTED OR ERROR-FREE.
10. Indemnity
10.1 By Customer. Subject to the limitations on liability set forth in Section 11, Customer will defend Panther, its Affiliates, and each of their officers, directors, employees, consultants, and agents against any claim, proceeding or suit (“Claim”): (a) brought by a third party alleging that the Customer Data infringes, misappropriates or otherwise violates any third party’s IPR or privacy or other rights; (b) arising out of violation of Subsection 4.1 (Restrictions); or (c) arising out of Customer’s unauthorized use of the Subscription Services. Subject to the limitations on liability set forth in Section 11, Customer will indemnify and hold harmless Panther from and against any and all expenses, losses, liabilities, fees, fines, penalties, damages, and costs (including reasonable attorney’s fees and court costs and expenses) incurred by Panther or agreed in settlement by Customer resulting from such Claim.
10.2 By Panther. Subject to the limitations on liability set forth in Section 11, Panther will defend Customer against any third party Claim alleging that the Subscription Services infringe, misappropriate or violate any United States patent, copyright or trademark. If Customer’s use of the Subscription Services results (or in Panther’s opinion is likely to result) in an infringement claim, Panther may either: (a) substitute functionally similar products or services; (b) procure for Customer the right to continue using the Subscription Services; or if in Panther’s sole opinion (a) and (b) are not commercially reasonable, Panther may terminate the Agreement, or the applicable Order Form, and provide Customer a pro-rata refund of any prepaid Fees for unused Subscription Services. Notwithstanding the foregoing, Panther will have no liability that arises in whole or in part from modifications to the Subscription Services made at the direction of any party other than Panther, use of the Subscription Services in violation of the Agreement or the combination or use of Subscription Services with non-Panther products. Subject to the limitations on liability set forth in Section 11, Panther will indemnify and hold harmless Customer against any damages and costs finally awarded against Customer or agreed in settlement by Panther (including reasonable attorneys’ fees) resulting from such Claim. This section sets forth Customer’s sole remedy with respect to any claim of intellectual property infringement.
10.3 Procedure. The indemnified party will promptly notify the indemnifying party of the claim for which indemnity is being sought, and will reasonably cooperate with the indemnifying party in the defense and/or settlement thereof. The indemnifying party will have the sole right to conduct the defense of any claim for which the indemnifying party is responsible hereunder (provided that the indemnifying party may not settle any claim without the indemnified party’s prior written approval unless the settlement unconditionally releases the indemnified party from all liability without prejudice, does not require any admission by the indemnified party, and does not place restrictions upon the indemnified party’s business, products or services). The indemnified party may participate in the defense or settlement of any such claim at its own expense and with its own choice of counsel.
11. Limitation of Liability
11.1 Exclusions. EXCEPT FOR: (I) MISAPPROPRIATION OF INTELLECTUAL PROPERTY, OR (II) FRAUD OR WILLFUL MISCONDUCT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE SUBSCRIPTION SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT A PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
11.2 Dollar Cap. EXCEPT FOR: (I) TRIAL SERVICES, FOR WHICH PANTHER’S LIABILITY SHALL IN NO EVENT EXCEED $100, (II) A PARTY’S INDEMNIFICATION OBLIGATIONS OR (III) FRAUD, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH THE CLAIM OR LIABILITY IS BASED, AND WHETHER OR NOT A PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. MULTIPLE CLAIMS SHALL NOT EXPAND THE LIMITATIONS SPECIFIED IN THIS SECTION. NOTWITHSTANDING THE FOREGOING, NEITHER PARTY EXCLUDES NOR LIMITS ITS LIABILITY TO THE OTHER PARTY FOR ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW.
11.3 Basis of Bargain. THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN PANTHER AND CUSTOMER, AND WILL APPLY EVEN IF THE REMEDIES AVAILABLE HEREUNDER ARE FOUND TO FAIL THEIR ESSENTIAL PURPOSE.
12. Term and Termination
12.1 Term. The Agreement is effective as of the Effective Date and will remain in effect until either (i) all Order Forms governed by this Agreement have expired or (ii) it is terminated in accordance with its terms.
12.2 Renewal. Each Order Form will automatically renew for additional periods equal in length to the Initial Subscription Term or one (1) year, whichever is greater (each, a “Renewal Subscription Term”) unless either party provides notice that such party does not wish to renew the Order Form in writing at least thirty (30) days before the last day of the then-current Subscription Term. Panther reserves the right to increase the Subscription Fees upon renewal, provided that Panther notifies Customer of the increase at least 30 days prior to the renewal.
12.3 Termination for Cause. Either party may terminate the Agreement and all Order Forms upon notice: (A) if the other party materially breaches the Agreement, provided that: (a) such terminating party gives 30 days’ written notice to the breaching party describing the manner in which the Agreement has been breached, and (b) the breach remains uncontested and uncured by the end of such notice period; or (B) immediately if (a) the other party suspends or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due, or admits inability to pay its debts; (b) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or substantially all of its business; or (c) the other party becomes insolvent or an order or application is made or a resolution is passed for its administration, winding-up, or dissolution or an administrator or other receiver, manager, liquidator, or trustee is appointed over all or any of its assets. If Customer terminates the Agreement for cause in accordance with this Subsection 12.3(A), then Customer shall be entitled to a pro-rata refund of any prepaid Fees for unused Subscription Services.
12.4 Effect of Termination. Upon any expiration or termination of the Agreement: (a) the limited licenses granted under the Agreement will immediately terminate and (b) each party will return or destroy all Confidential Information of the other party in its possession or control. Materials that are destroyed will be destroyed in a manner consistent with standard industry practices for data destruction, taking into consideration the nature of the data.
12.5 Data Retention, Portability and Deletion.
12.5(a) Data Retention. With regard to the Panther SaaS Solutions only, during the Term, Panther will retain Customer Data for the period described in the Order Form or Documentation and may delete or otherwise render inaccessible the aged Customer Data after such time.
12.5(b) Data Portability and Deletion. With regard to the Panther SaaS solutions only, within seven (7) days of termination or expiration of the Agreement (including all Order Forms), and upon request made by Customer in writing, Panther will make all Customer Data in Panther’s possession available to Customer for export or download as provided in the Documentation. At the end of such seven (7) day period, Panther may delete or otherwise render inaccessible any Customer Data. Panther has no obligation to retain the Customer Data after this seven (7) day period.
12.5(c) Panther Offerings Deletion. During the term of this Agreement and for sixty (60) days after termination or expiration of the Subscription Term, Customer will ensure that Panther is consistently given access into Customer’s relevant environment(s) to enable Panther to remove all Panther Offerings. Customer will make all Panther Offerings in Customer’s possession available to Panther for export or download. Panther shall remove Panther Offerings from Customer’s environment after thirty (30) business days from termination or expiration of the Subscription Term, after such time Customer may render its environments inaccessible to Panther. After termination or expiration of this Agreement, Customer must remove all access to Panther Offerings, Documentation, passwords, access codes, and Panther Confidential Information from its environments as Customer shall have no right to access or use Panther Offerings. For the avoidance of doubt, stored Customer data logs are not included in Panther Offerings and Customer shall have the right to retain such logs. Notwithstanding any termination or anything to the contrary in the Agreement or any Order Form, Customer shall pay for all of its use of the Panther Offerings.
12.6 Survival. The following sections will survive any expiration or termination of the Agreement: 4.1 (Restrictions), 5.1 (Fees and Overages), 5.5 (Taxes), 7 (Intellectual Property), 9.4 (Disclaimer), 10 (Indemnity), 11 (Limitation of Liability), 12 (Term and Termination), 13 (General Provisions), and 14 (Additional Definitions).
13 General Provisions
13.1 Publicity. Panther may reference Customer’s name and any Customer trademark and logo in listings of Panther’s customers; provided that Customer may require Panther to cease or modify any use of Customer’s name or logo that is misleading or tends to dilute Customer’s brand. In addition, upon Customer’s prior review and approval (which approval shall not be unreasonably withheld or delayed), Panther may reference Customer’s name and any Customer trademark and logo, as well as other information pertaining to the provision and results of the Subscription Services provided, in case studies and other Panther marketing materials.
13.2 Notices. Ordinary day-to-day operational communications may be conducted by email or telephone communications. Any other written notices required by the Agreement will be given by personal delivery, by pre-paid first class mail or by overnight courier to the address specified on the most recent Order Form, “Attention: Legal Department” (or such other address as may be specified in writing in accordance with this Subsection). In addition, with respect to Panther, legal notices also must be sent by email to [email protected].
13.3 Waiver of Rights. A party’s failure to enforce any right or provision of the Agreement will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of that party. Except as expressly set forth in the Agreement, the exercise by either party of any of its remedies under the Agreement will be without prejudice to its other remedies under the Agreement or otherwise.
13.4 Force Majeure. Neither party will be responsible for any failure or delay in the performance of its obligations under the Agreement (except for any payment obligations) due to causes beyond its reasonable control, which may include, without limitation, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, denial of service or other malicious attacks, telecommunications failure or degradation, pandemics, epidemics, public health emergencies, governmental orders and acts (including government-imposed travel restrictions and quarantines), material changes in law, war, terrorism, riot, or acts of God.
13.5 Subcontracting. Panther may use subcontractors, and other third-party providers (“Subcontractors”) in connection with the performance of its own obligations hereunder as it deems appropriate; provided that Panther remains responsible for the performance of each such Subcontractor.
13.6 Export Control. Each party shall comply with all export and import laws and regulations of the United States and other applicable jurisdictions ("Export Laws"), including those imposing export controls and trade sanctions on countries, entities and individuals (“Sanctions Targets”). Without limiting the foregoing, (a) Customer represents and warrants that none of its Users is listed on any U.S. government list of Sanctions Targets or located in (or a national of) a country that is a Sanctions Target, and (b) Customer will not submit to the Subscription Services any information that is controlled under the U.S. International Traffic in Arms Regulations.
13.7 U.S. Government End Users. The Subscription Services are “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in FAR 12.212 and other relevant government procurement regulations. Any use, duplication, or disclosure of the Subscription Services or its documentation by or on behalf of the U.S. government is subject to restrictions as set forth in the Agreement
13.8 Independent Contractors. The relationship between the parties is that of independent contractors. Nothing in the Agreement shall be construed to establish any partnership, joint venture, or agency relationship between the parties. Neither party will have the power or authority to bind the other or incur any obligations on the other’s behalf without the other party’s prior written consent.
13.9 Severability; Assignment. If any provision of the Agreement is held invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the other provisions of the Agreement will remain in full force and effect. Neither party may assign the Agreement without the other party’s express written consent, except to the assigning party’s successor by way of merger, acquisition, reorganization, or sale of stock or assets. Subject to the foregoing, the Agreement will bind and inure to the benefit of the parties, their successors and permitted assigns.
13.10 Governing Law.. The Agreement and any action related thereto will be governed by the laws of the State of California, without regard to its conflict of laws provisions. The sole and exclusive jurisdiction and venue for any legal proceedings in connection with the Agreement shall be the state and federal courts located in the Northern District of California. The Parties waive any objections related to such jurisdictions and venues. The United Nations Convention on Contracts for the International Sale of Goods or its successor will not apply to the Agreement.
13.11 Entire Agreement; Amendment. The Agreement constitutes the entire and exclusive understanding and agreement between Panther and Customer relating to the subject matter of the Agreement, and the Agreement supersedes and replaces all prior oral or written understandings or agreements between Panther and Customer regarding the subject matter of the Agreement. The parties agree that any term or condition stated in any of Customer’s ordering documents, quotes, purchase orders, or the like, is void. The Agreement may be amended or modified only by a written document executed by duly authorized representatives of both of the parties.
13.12 Counterparts. The parties may execute any documents hereunder in counterparts, each of which will be deemed an original and all of which together will be considered one and the same agreement.
14 Definitions
“Affiliate” means an entity that, directly or indirectly, owns or controls, is owned or is controlled by, or is under common ownership or control with a party. As used in this definition, “control” means the power to direct the management or affairs of an entity and “ownership” means the beneficial ownership of more than fifty percent (50%) of the voting equity securities or other equivalent voting interests of an entity.
“Customer Data” means: all security log files, data and other content and material, in any format, that are uploaded by Customer or on behalf of Customer to the Subscription Services.
“Customer Security Breach” means a breach of security within the Customer AWS or Snowflake instance or Customer’s computer network leading the unauthorized access, use, alteration, or disclosure of Customer Data. It is understood and agreed that Panther shall have no liability or responsibility to Customer for any Customer Security Breach.
“Documentation” means Panther’s technical documentation and user guides for the Panther Offerings made available through the Subscription Services and at docs.panther.com.
“DPA” means the controller-to-processor data processing agreement executed by the Parties available at https://panther.com/data-processing-agreement/.
“Feedback” means any suggestions, enhancement requests, recommendations, corrections, or other feedback provided by Customer or its Users to Panther about the Panther Offerings.
“Intellectual Property Rights” or “IPR” means all patents, copyrights, moral rights, trademarks, trade secrets, mask work rights and any other form of proprietary rights or rights to intellectual property recognized in any jurisdiction, including applications and registrations for any of the foregoing.
“Overage” means any data processed (measured in terabytes) which exceeds the usage amount set forth in a relevant Order Form.
“Panther Offerings” means the Subscription Services and Support Services provided by Panther and identified in the relevant Order Form.
“Panther Technology” means the Subscription Services, Documentation, Usage Data and any and all related and underlying technology and documentation in any Panther Offerings, as well as any derivative works, modifications, or improvements of the foregoing, including any Feedback that may be incorporated into the foregoing.
“Panther Security Breach” means a breach of security within the Panther Offerings or Panther computer network leading the unauthorized access, use, alteration, or disclosure of Customer Data.
“Subscription Term” means the subscription term listed on the first related Order Form (the “Initial Subscription Term) and any renewal thereof (each a “Renewal Subscription Term”).
“Subscription Services” means the Panther services made generally commercially available and ordered by Customer as set forth in an Order Form.
“Taxes” means taxes, levies, duties and assessments, including but not limited to value-added, sales, use, or withholding taxes, assessed or collected by any governmental body, but excluding any taxes based on net income, property or employees of Panther.
“Term” means the Initial Subscription Term as well as any subsequent Renewal Subscription Terms.
“Third-Party Applications” means non-Panther services, offerings, or applications that interface with the Subscription Services and are subject to a separate agreement between Customer and the provider of the Third-Party Application. Third-Party Applications may include, but are not limited to, AWS and Snowflake applications.
“Trial Services” means any Subscription Services or functionality that may be made available by Panther to Customer to try at Customer’s option at no additional fee and which is designated as “trial,” “evaluation,” or by a similar designation.
“Usage Data” means anonymous statistical information about the use and functioning of the Subscription Services by Customer and other Panther licensees, in an aggregated form that does not identify Customer or any User and contains no personally identifiable information. Usage Data may include log data solely for the purpose of detection development and provided that any resulting detections are anonymized and do not include Customer Data.
“User” means the persons designated and granted access to the Subscription Services by Customer, including, as applicable, any of its employees and contractors.
Exhibit A: Professional Services Addendum
This Professional Services Addendum (this "PS Addendum"), dated as of [DATE] (the "Effective Date"), is an addendum to that certain Enterprise Subscription Agreement, executed by and between Panther Labs Inc., a Delaware corporation, with an address at 440 N Barranca Ave #8909, Covina, CA 91723 ("Panther") and [CUSTOMER NAME], a [STATE OF ORGANIZATION] [corporation/LLC/], with offices located at [ADDRESS] ("Customer" and together with Panther, the "Parties", and each a "Party").
WHEREAS, Panther has the capability and capacity to provide certain implementation and customization services; and
WHEREAS, Customer desires to retain Panther to provide the said services, and Panther is willing to perform such services under the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Panther and Customer agree as follows:
1. Services. Panther shall provide to Customer the services (the "Services") set out in one or more statements of work to be issued by Customer and accepted by Panther in writing (each, a "Statement of Work"). The initial accepted Statement of Work is attached hereto as Exhibit A1. Additional Statements of Work shall be deemed issued and accepted only if signed by the Panther and the Customer.
2. Change Orders. Any changes to a Statement of Work requires a written amendment signed by Customer and Panther.
3. Personnel. Panther will determine which personnel, or subcontractors, will perform the Services. If Customer requests a change in Personnel and provides a reasonable and legal basis for such request, Panther will use commercially reasonable efforts to replace the assigned personnel with alternative personnel.
4. Subcontracting. Panther may subcontract any of its obligations under the Agreement, but will remain liable to the Customer for any subcontracted obligations.
5. Panther Obligations. Panther shall:
5.1 Designate employees or contractors that it determines, in its sole discretion, to be capable of filling the following positions:
5.1(a) A primary contact to act as its authorized representative with respect to all matters pertaining to this Agreement (the "Panther Contract Manager").
5.1(b) A number of employees or contractors that it deems sufficient to perform the Services set out in each Statement of Work, (collectively, with the Panther Contract Manager, "Provider Representatives").
5.2 Make no changes in Provider Representatives except:
5.2(a) Following notice to Customer.
5.2(b) Upon the resignation, termination, death or disability of an existing Provider Representative.
5.2(c) At the reasonable request of Customer, in which case Panther shall use reasonable efforts to appoint a replacement at the earliest time it determines to be commercially viable.
5.3 Maintain complete and accurate records relating to the provision of the Services under this Agreement, including records of the time spent and materials used by Panther or its contractors in providing the Services.
6. Customer Obligations. Customer shall:
6.1 Designate one of its employees to serve as its primary contact with respect to this Agreement and to act as its authorized representative with respect to matters pertaining to this Agreement (the "Customer Contract Manager"), with such designation to remain in force unless and until a successor Customer Contract Manager is appointed.
6.2 Require that the Customer Contract Manager respond promptly to any reasonable requests from Panther for instructions, information, or approvals required by Panther to provide the Services.
6.3 Provide reasonable and timely cooperation in connection with the Panther’s provision of Services. Panther will not be liable for a delay caused by. The Customer’s failure to provide Panther with information, materials, consents, or access to Customer’s facilities, employees, contractors, equipment, networks, or systems required for Panther to perform the Services. If Panther informs Customer of such failure and Customer does not cure the failure within ten (10) days, then Panther may terminate any incomplete Services and, in addition to any fees due under the relevant Statement of Work, Customer will pay actual costs incurred by Panther for the cancelled Services.
6.4 Take all steps necessary, including obtaining any required licenses or consents, to prevent Customer-caused delays in Panther's provision of the Services.
6.5 No Personal Data. Customer will not provide Panther with access to any Personal Data unless the parties have agreed in a separate agreement on the scope of work and any terms applicable to Panther’s processing of such Personal Data.
7. Fees and Expenses.
7.1 Customer shall reimburse Panther for all reasonable expenses incurred in accordance with the Statement of Work or incurred as necessary to provide the Services, within 30 days of receipt by the Customer of an invoice from Panther accompanied by receipts and reasonable supporting documentation.
7.2 Partner Orders; Third Party Services. If Customer orders Services from a Partner or Third Party; (a) Customer will pay the Partner for the Services under payment terms agreed to between the Customer and the Partner in an Order Form or SOW, (b) Panther will not owe any credits or refunds for the Third Party Services to Customer. The Customer may obtain credits or refunds for the Third Party Services from the Partner to the extent agreed upon between the Customer and the Partner.
8. Intellectual Property. All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, "Intellectual Property Rights") in and to all documents, work product and other materials that are delivered to Customer under this Agreement or prepared by or on behalf of the Panther in the course of performing the Services, including any items identified as such in the Statement of Work (collectively, the "Deliverables"), except for any Confidential Information of Customer or customer materials, shall be owned by Panther. Panther hereby grants Customer a license to use all Intellectual Property Rights in the Deliverables free of additional charge and on a non-exclusive, non-transferable, non-sublicensable, fully paid-up, royalty-free basis solely to the extent necessary to enable Customer to make reasonable use of the Deliverables and the Services. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the Effective Date by their respective duly authorized officers.
Onboarding Statement of Work
This Onboarding Statement of Work (“Statement of Work” or “SOW”) supplements the Professional Services Addendum (“attachment A”) attached to the Enterprise Services Agreement (“ESA”) agreed to by the parties, as further described in the relevant Order Form (as defined in the ESA). Each of Panther and Customer shall be referred to as a Party and collectively, the Parties.
Description: Panther has agreed to provide to Customer 10 hours of onboarding services as further described in attachment A, attached hereto and made a part of this Statement of Work (“Onboarding Services”).
Term. Customer may request Onboarding Services to begin after the Effective Date of the ESA but no later than 4 weeks thereafter (“Onboarding Start”). Onboarding Services shall be provided over a six (6) week period and shall terminate at the earlier of (i) the expiration of the ten (10) hours allocated or (ii) six (6) weeks from the Onboarding Start.
Details: Customer shall review the Onboarding Services available and identify which services are desired by indicating on the checklist provided. Panther will assess what was covered during the proof of concept and share a recommendation, but Customer can pick and choose which items listed in the onboarding document are covered during onboarding sessions.
Scheduling: Customer and Panther, through its onboarding partner, shall schedule the Onboarding Services to be provided to Customer at mutually available dates and times.
Panther’s Onboarding Team
As part of the onboarding services provided by Panther, Customer will have access to the following onboarding points of contact:
- Project manager: The Panther project manager (PM) will remain in lockstep with Customer’s needs throughout the onboarding process. The Project manager will make sure to hit every important milestone in a timely manner and on time and according to the relevant specifications.
- Implementation partner: A dedicated Panther partner will work closely with the Panther Project manager and Customer to handle the training and configuration setup needed to complete onboarding.
Availability: Panther’s project manager will be available Monday through Friday, 9:00 a.m.—5:00 p.m. EST (excluding Canadian and US public holidays), and can be reached via Customer’s dedicated Slack channel. The Implementation partner will be available during the hours provided in Customer’s initial onboarding introduction meeting and can be added to the connected Slack channel at Customer’s request.
Fees: Onboarding Services are billed at $3,000 for the ten (10) hours, which is due and payable upon receipt of invoice. If Customer should decide to increase the hours of onboarding support, Customer may contract directly with Panther’s onboarding partner for such services. Any additional support services provided directly from Panther’s onboarding partner does not involve Panther and Panther shall have no responsibility or liability arising therefrom.
Exhibit B: AI Terms and Conditions
1. Use of the AI Feature: Panther hereby grants the Customer a limited, non-exclusive, non-transferable and non-sublicensable right and license to use the AI Feature during the Subscription Term set forth in the Order Form. The use of the AI Feature is subject to Customer’s compliance with any and all applicable laws and these AI Terms.
2. Third Party Provider: The AI Feature includes technology provided by a third-party provider. Accordingly, Customer also agrees to be bound by the terms of use of such third-party provider.
3. Content: The outputs generated and returned by the AI Feature (“Output”) are based on the data provided by Customer processed on and through the Panther platform (“Input”). Customer retains all right, title, and interest (including all intellectual property rights) in and to any Input into the AI Feature (“Content”), provided that (i) Customer’s ownership of Output is limited to data elements constituting the Input entered by Customer, and any design, layout, content or other features of the Output developed or included by Panther or its third party licensor shall be owned by Panther and/or its third party licensor and are licensed for use to Customer for its own internal business purposes and not for commercial exploitation, and (ii) Customer grants Panther a worldwide, perpetual license to access, use, process, copy, distribute, perform, export, and display, Input and Output for Panther’s internal purposes of improving the AI Feature or other AI products or services of Panther, and for purposes of aggregation and de-identified data usages pursuant to the Panther ESA. Customer is solely responsible for ensuring that the Input it provides through the AI Feature complies with applicable laws, these AI Terms, and the ESA (including, without limitation, the acceptable use limitations set forth in the ESA). Customer shall not provide personally identifiable information concerning an individual as an Input, unless it has first obtained the express consent of such individual. Customer agrees that it will not represent that Output from the AI feature was human-generated.
4. Accuracy: The AI Feature utilizes technology provided by a third party provider, and accordingly Panther does not guarantee accuracy of any Output generated by the AI Feature. Given the probabilistic nature of machine learning and AI, use of the AI Feature may in some situations result in incorrect Output. Due to the nature of machine learning, Output may not be unique across users and the AI Feature may generate the same or similar output for third parties. The Customer shall evaluate the accuracy of any Output and shall not rely on Panther to do so. Customer agrees that any Output of the AI Feature in the nature of a suggestion or recommendation is merely a suggestion or recommendation to be taken under advisement by Customer, and must be independently reviewed, verified and decided upon by Customer. Customer’s use of Input and Output for any commercial purposes is at Customer’s sole risk.
Disclaimers: IN ADDITION TO ALL DISCLAIMERS AND LIMITATIONS INCLUDED IN THE ESA, THE AI FEATURE IS PROVIDED ON AN “AS IS” AND AS “AVAILABLE” BASIS (AND WITHOUT REGARD TO ANY SERVICE LEVEL AGREEMENTS). NEITHER PANTHER NOR THE APPLICABLE THIRD-PARTY PROVIDER, MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE AI FEATURE, OR THE INFORMATION, TEXT, AND CONTENT INCLUDED IN THE OUTPUT, OR THE USE OF THE INPUT, INCLUDING WITHOUT LIMITATION, ACCURACY OF THE RESULTS, AVAILABILITY, SUITABILITY, RELIABILITY, OR CONTENT OF ANY INFORMATION PROVIDED THROUGH THE AI FEATURE. PANTHER WILL HAVE NO LIABILITY OR RESPONSIBILITY ARISING IN ANY WAY FROM CUSTOMER’S USE OF THE CONTENT OR ANY ERRORS OR OMISSIONS CONTAINED IN THE CONTENT. NEITHER PANTHER NOR ANY OF ITS AFFILIATES OR LICENSORS WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNATIVE OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, OR DATA OR OTHER LOSSES, EVEN IF PANTHER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE AGGREGATE LIMITATIONS OF LIABILITY UNDER THESE TERMS SHALL BE GOVERNED BY THE ESA BETWEEN PANTHER AND CUSTOMER. SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY. CUSTOMER MAY HAVE OTHER RIGHTS, WHICH VARY BY JURISDICTION. WHEN THE IMPLIED WARRANTIES ARE NOT ALLOWED TO BE EXCLUDED IN THEIR ENTIRETY, CUSTOMER AGREES THAT THEY WILL BE LIMITED TO THE GREATEST EXTENT AND SHORTEST DURATION.