ENTERPRISE SUBSCRIPTION AGREEMENT
This Enterprise Subscription Agreement, dated as of the date of last signature below (the “Effective Date”), is entered into between Panther Labs Inc., a Delaware corporation, with offices at 38 Bluxome Street, San Francisco, California 94107 (“Panther”), and the entity placing an order for the Panther Offerings listed on the order form that references this Enterprise Subscription Agreement (the “Order Form”). The “Agreement” is comprised of: (a) the terms and conditions of this Enterprise Subscription Agreement, (b) any documents or exhibits referenced in this Enterprise Subscription Agreement, and (c) any Order Form(s) that references this Enterprise Subscription Agreement. Additional defined terms appear at Section 14 below.
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 but will be governed by the terms of this Agreement.
1.3. Order Form. The Agreement governs all Order Forms that reference the Agreement. Each Order Form shall be entered into by Customer and Panther and shall specify the specific Subscription Services to be provided to Customer, as well as any other details regarding the Subscription Services purchased thereunder.
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 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. In no event during the Subscription Term shall Panther materially diminish the protections provided by the controls set forth in Panther’s then-current Security Annex.
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 personnel accessing and using the Subscription Services 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 Connnected 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 of the Panther Offerings beyond the scope of the Agreement or after termination or expiration of the Term.
5. Fees and Payments
5.1 Fees and Overages.
5.1(a) Fees. 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 each month (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. Any time during the Subscription Term, Panther may audit the quantity of Customer Data processed each month. If it is determined that Customer's actual usage exceeds the Permitted Maximum (such excess, the “Overage”), then Panther shall notify Customer of the Overage and Customer shall pay the Overage fees as described at Section 5.1(c).
5.1(c) Overage Fees. If an Overage is identified either by Customer or by Panther through an audit, then Panther shall invoice Customer for the Overage for which payment will be due thirty (30) days from receipt of invoice. In order to enable Customer to continue to utilize the excess usage, the parties shall execute an amendment to the then current Order Form, which increases the Permitted Maximum to include the Overage amount, at the price per terabyte listed on the then current Order Form, pro-rated for the remainder of the Subscription Term. Customer shall pay to Panther the fees on the amended Order Form in accordance with Section 5.2(a) below.
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 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.
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.
8.1 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.
10.1 By Customer. Subject to the limitations on liability set forth in Section 11, Customer will defend Panther, its Affliliates, 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 terminated in accordance with its terms. If there is no Order Form currently in effect, then either party may terminate the Agreement upon written notice to the other party.
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. 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 fifteen (15) 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 has no right and may not utilize 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.
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.
“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 terrabytes) 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.
“User” means the persons designated and granted access to the Subscription Services by Customer, including, as applicable, any of its employees and contractors.