Last Updated: January, 2025
This Master Service Agreement (“MSA”) together with all exhibits and references incorporated herein, including without limitations, any Additional Terms, Exhibit, DPA, SLA or applicable Subscription Orders (as such terms are defined below) (all shall collectively be defined herein as the “Agreement“), forms a legally binding and enforceable agreement by and between Panaya and customer, a legal entity or an individual entering this Agreement on behalf of and under the authorization of the legal entity (“Customer“). Customer and Panaya may be referred to herein collectively as the “parties” or individually as a “party.”
If you (the person accepting this Agreement) are accepting this Agreement on behalf of your employer or another entity, you agree that: (i) you have full legal authority to bind your employer or such entity to this Agreement, and (ii) you agree to this Agreement on behalf of your employer or such entity. If you are accepting this Agreement using an email address from your employer or another entity, then: (i) you will be deemed to represent that party, (ii) your acceptance of this Agreement will bind your employer or that entity to these terms, and (iii) the word “you” or “Customer” in this Agreement will refer to your employer or that entity.
THIS MSA IS EFFECTIVE AS OF THE DATE THE CUSTOMER ACCEPTS THE SUBSCRIPTION ORDER (“EFFECTIVE DATE“).
WHEREAS, Panaya provides subscription-based on-demand online IT software-as-a-service solution for testing and analyzing the impact of changes made to Customer’s enterprise applications, all as detailed and agreed under the Subscription Order or otherwise in writing (collectively “Services”); and
WHEREAS, Customer wishes to purchase a subscription to use the Services by entering into a Subscription Order, each Subscription Order is subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the parties hereby agree as follows:
1.1. “Affiliates” 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, where “ownership” means the beneficial ownership of more than fifty percent (50%) of an entity’s voting equity securities or other equivalent voting interests and “control” means the power to direct the management or affairs of an entity.
1.2. “Additional Terms” means the terms governing additional services that Panaya may offer, including new features, beta services or free trials, which will be governed by applicable design partner agreements, or AI features that are governed by the AI Terms, and any other applicable binding terms governing the use of additional features provided and offered by Panaya.
1.3. “AI Features” means AI features offered within the Platform during the use of the Service, which the Customer can choose weather to activate or not, such as task management and summarizing tools, chats, etc. which are governed by the AI terms and conditions (“AI Terms”).
1.4. “Authorized User” means any individual that Customer authorizes to use the Services. Authorized Users may include its Affiliates, employees, consultants, contractors and agents or as otherwise agreed in writing by the parties.
1.5. “Confidential Information” means all nonpublic information, in whatever form disclosed, provided by or on behalf of either party (“Disclosing Party”) to the other party (“Receiving Party”), that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, can reasonably be understood as proprietary or confidential. The Confidential Information shall not include information which (a) becomes generally available to the public, other than as a result of a breach of confidentiality by the Receiving Party; (b) was previously in the possession of the Receiving Party prior to its disclosure hereunder; (c) is independently developed by the Receiving Party without reliance on, use of or reference to the Confidential Information and without any breach of the terms of the Agreement; (d) was lawfully received by the Receiving Party from a third party having rights to disclose. For the avoidance of doubt, Panaya’s Confidential Information includes any source code and technical or performance information about the Panaya Technology, the Service or Platform, any information obtained through security questionnaires, audit, inspections or reports shared (such as SOCII report, penetration test reports, or otherwise). Customer’s Confidential Information includes Customer Data and Result.
1.6. “Customer Data” means any data, content, or materials, uploaded to the Platform, or provided to Panaya by Customer or Authorized Users, which is used in connection with the Services, such data includes, without limitations, the metadata, notes, chat text, requests, files, recording, information obtained through logs, support, requests, and any other data shared by Customer with Panaya for the purpose of providing and obtaining the applicable Services.
1.7. “Data Processing Agreement” means the Data Processing Agreement available at: panaya.com/data-processing-agreement/.
1.8. “Documentations” means a set of digital or printed technical user manuals, notes, instruction, summary and any other supporting documentation provided by Panaya to the Customer in the course of providing the Services, the documentation provide technical assistance and service specifications.
1.9. “Panaya Proprietary” means the Services, Panaya Technology, Documentation and any information, content, image, video, code, data, or text available therein.
1.10. “Panaya Technology” means all of Panaya’s proprietary technology (including, but not limited to, software, plug-ins, features, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs, and other tangible or intangible technical material or information), and all Intellectual Property rights associated therewith, utilized by Panaya under this Agreement.
1.11. “Platform” means Panaya cloud-based interface in which the Customer and Authorized Users receive the Services and use the Services, including the Customer Account and testing environment.
1.12. “Third-Party Application” means any internet-based or offline software application, API, connector, pixel, etc. that is utilized by Customer and integrates with the Services, at Customer’s sole discretion.
1.13. “Results” means the test results, Platform outputs, provided by Panaya as part of the Service.
1.14. “Recording Feature” means a feature that allows Customer to record all actions performed or data displayed on the stations on which the feature was activated, the data and actions recorded shall be referred “Recorded Data”.
1.15. “Subscription Order”means the subscription order form which provides the service specifications, commercial terms, etc.
1.16. “Subscription Term” means the terms of which an applicable Subscription Order is effective, i.e., from the start date until the end date of an applicable Subscription Order as stated within such order.
1.17. “Sensitive Information” means health related information, including protected health information as defined in the U.S. Health Insurance Portability and Accountability Act of 1996 and regulations thereunder, as amended (“HIPAA”), or similar information under other comparable laws or regulations, financial information, including credit or debit card numbers, or any related security codes, or any other information that reveals an individual’s demographic data, or as such term shall be defined under applicable laws.
1.18. “Usage Data” means analytic, statistic, measurement data and telemetry collected by Panaya relating to Customer’s use of the Services; such data may include the click stream data, mouse movement, session recording, bugs, errors, crash data, analytics, access logs, time and duration of use, telemetry data.
2.1. Subject to this Agreement and during the applicable Subscription Term, Panaya grants the Customer a limited, revocable, non-exclusive, non-transferable and non-sublicensable right to access and use and the Services and Platform, or to grant Authorized Users with such rights, solely for Customer’s internal business purposes, in accordance with the Documentation and subject to the Order Form specification.
2.2. Customer Affiliates may use the Services purchased by Customer without signing an additional Subscription Order, if Customer sets up individuals using the Services on behalf of such Affiliate as Authorized Users. Customer Affiliates may also purchase and use the Services subject to the terms of this Agreement by executing separate Subscription Orders, in which case this Agreement, shall apply to such Customer Affiliates, and such Affiliates shall be deemed the “Customer” as contemplated herein.
2.3. Subject to the Additional Terms, Panaya reserves the right to offer the Customer additional services, such service may include, without limitations the following:
2.3.1. AI Features and capabilities which may be updated and offered from time to time which are subject to the AI Terms.
2.3.2. From time to time, Panaya may invite Customer to try certain features or products at no charge for a limited evaluation period, which may be designated or identified as beta, pilot, evaluation, trial or the like (collectively, “Evaluation“). Customer’s agreement to participate in an Evaluation is completely voluntary, and it may opt out at any time in writing, following which Customer’s access to such Evaluation will be terminated. Notwithstanding anything to the contrary contained in this Agreement, Evaluations are licensed for Customer’s internal evaluation purposes only, and not for production use. Panaya will be under no obligation to provide Customer any support services with respect to an Evaluation. Notwithstanding the foregoing, Panaya may discontinue any Evaluation in whole or in part at any time in its sole discretion and Panaya reserves the right to decide whether to make features provided in an Evaluation generally available. DUE TO THE NATURE OF EVALUATIONS AND THEIR VOLUNTARY PARTICIPATION, EVALUATIONS ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND ARE EXCLUDED FROM PANAYA LIABILITIES AND REMEDIES PROVIDED HEREIN (INCLUDING ANY OBLIGATIONS ON BEHALF OF PANAYA TO INDEMNIFY, DEFEND, OR HOLD HARMLESS UNDER THIS AGREEMENT), UNLESS SUCH EXCLUSION IS NOT ENFORCEABLE UNDER APPLICABLE LAW. IF LIABILITY EXCLUSION IS NOT ENFORCABLE UNDER APPLICABLE LAW, PANAYA’S LIABILITY WITH RESPECT TO THE EVALUATION SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100.00).
2.4. Panaya reserves the right, during the Subscription Term, to modify, update, enhance, remove, add or make any other changes to, or discontinue, features or parts of the Platform or Services (such as: infrastructure, security, technical configurations, UI, etc.), provided however, that such modification will not result in a reduction in the level of performance or availability of the applicable Services. The Customer is required to accept these technical patches, bug fixes, updates, maintenance and service packs (collectively, “Patches”) necessary for the proper function and security of the Services, such Patches are generally released by Panaya from time to time and are meant (however, not obligated to) to improve the Service, enhance Customer’s use and secure the Service.
2.5. Except as permitted herein, Customer or any Authorized User shall not at any time, directly or indirectly: (a) publish, disclose, copy, rent, lease, sell, modify, loan, distribute, sell, resell, transfer, assign, alter or create derivative works based on the Services or any part thereof; (b) provide access to the Service or Platform to a third party, other than to Authorized Users; (c) use the Platform of Service to develop a similar or competing product or service, (d) reverse engineer, decompile, disassemble or seek to access the source code or non-public APIs to the Service or Platform; (e) interfere with or circumvent the Service or Platform, or limits or other restrictions, (f) remove, obscure or modify in any way any proprietary or other notices or attributions in the Service, Documentation or Platform; or (g) violate the acceptable use policy use the Service for any illegal, immoral, or unauthorized purpose (including that which would infringe upon the rights of a third party) or that is in breach of applicable law.
2.6. Failure to comply with the restrictions set forth under this Agreement, including this Section 2, may result, at Panaya’s sole discretion, in the suspension of the Customer’s access to the Account, without derogating from any other remedy Panaya may be entitled to under the Agreement or applicable law.
3.1. Panaya shall: (i) provide the Services in compliance with the Documentation and applicable laws; (ii) provide support as described in the Subscription Order and subject to Customer providing timely access and personnel reasonably requested by Panaya. It shall be clarified, Panaya does not provide professional services.
3.2. Customer must use the Services in compliance with this Agreement and the Documentation and comply with all obligations and requirements set forth herein. Further, Customer is responsible for determining whether the Service meets Customer’s requirements and any regulatory obligations related to its intended use.
3.3. Customer must ensure it has made all disclosures and obtained all rights and consents necessary for Panaya to use Customer Data and to provide the Service and support.
4.1. Customer will be designated with an online account and dashboard from which is may access and use the Services (“Account” or “Customer Account”). Each account is controlled by the admin which designates access to Authorized Users (as permitted under the applicable Subscription Order). Except as otherwise agreed to in writing, the total number of Authorized Users will not exceed the number outlined in the Subscription Order without bearing additional costs. Customer is responsible to ensure Authorized Users use the Services and Support in compliance with this Agreement.
4.2. Customer, and Authorized Users are responsible for any action conducted under the Customer Account, including any data or information uploaded or transferred by it, Panaya has no control over the Customer Data, and is not required to monitor the Customer Data.
4.3. In order to provide the Services and support, Panaya will process the Customer Data in compliance with this Agreement. To the extent Customer Data will include Personal Data it will be processed in accordance with the Data Processing Agreement and this Agreement. Customer shall not upload Sensitive Information to the Platform, however, to the extent the Customer Data includes Sensitive Data, it is the Customer’s sole and absolute responsibility and liability to inform Panaya, in writing, of such processing and to the extent applicable, the Customer shall ensure additional contractual provisions are executed.
4.4. Customer hereby grants to Panaya, its Affiliates, and contractors the right, and is expressly instructing Panaya, its Affiliates, and contractors, to process Customer Data in order to provide the Services and Support. Panaya will only access, use, process or disclose Customer Data (i) to provide the Services in accordance with this Agreement and the Documentation; (ii) to provide support services and prevent or address service or technical problems; (iii) as compelled by law in accordance with the Confidentiality section below; or (iv) as expressly permitted in writing by Customer. Panaya shall enable Customer to export its Customer Data at any time during any Subscription Term (either by providing written request to Panaya or export using self service available in the Account, if applicable).
4.5. Customer is obligated to ensure that the Customer Data is accurate and updates and understands that the Results executed from the Service is based on and reliant on the Customer Data.
4.6. Panaya may, directly or through third party measurement tools, collect and use Usage Data solely for the purpose of improving, operating, and supporting the Services. Panaya shall own all rights in and to the Usage Data and will process the Usage Data solely in accordance with applicable laws and as set forth herein, or in the Panaya privacy policy.
4.7. In addition to the obligations set forth in the Data Processing Agreement, Customer is obligated to choose the processing location (i.e., EU or US, as set forth in the Data Processing Agreement), and, undertakes and understands, that the support services may be provided through third-party country, in which Panaya will ensure adequate standards are applied.
5.1. Panaya has implemented and will maintain an information security program that uses appropriate physical, technical and organizational measures designed to protect Customer Data from unauthorized access, destruction, use, modification or disclosure, as described in its Security Measures Policy. Panaya will also maintain a compliance program that includes independent third-party audits and certifications, as described in its Security Measures. In case Customer Data includes Personal Data, the security measures are further described stated in Annex II of the Data Processing Agreement.
5.2. While Panaya secures the Services and the Customer Data therein, Customer is responsible for properly configuring and using the Services subject to the Documentation or otherwise taking appropriate actions to secure, protect and backup the Customer Data and any deliverables provided through the Services.
5.3. The Customer is responsible to ensure the security of the Customer Account, and shall ensure that: (i) the passwords used by the Customer or Authorized users are strong and stand with industry standards; (ii) each Customer and Authorized User shall keep its login credentials confidential and shall not enable any third-party to access the Account and Services; (iii) it shall suspend inactive permissions, if applicable; and (iv) to the extent the Customer implements Panaya with any Third Party Application, the Customer shall ensure that such integration is secured and Panaya shall not be responsible or liable for any failure, bugs, errors, or secturity issues arising from such Third Party Application.
5.4. Customer shall promptly notify Panaya if it becomes aware of any unauthorized access to any login credentials or other unauthorized access to or use of the Account, notices shall be provided to: [email protected], or to the applicable Panaya point of contact listed in the Subscription Order.
6.1. Payment terms shall be in accordance with the terms of the Subscription Order. Except in the event of termination for breach by Panaya as set forth in Section 6, all payment terms are non-cancelable or non-refundable whether or not the Services are actively used by the Customer or its Authorized Users.
6.2. If Customer exceeds the scope of use purchased as detailed in the Subscription Order, Panaya reserves the right to charge Customer additional fees at Panaya’s then-current rates.
6.3. All payments and other amounts payable by Customer under the Agreement are exclusive of all taxes, including without limitation, sales, use, value-added, withholding or other taxes, customs, levies, or duties imposed by taxing authorities on transactions, and the Customer shall be responsible for payment of all such taxes, levies, or duties, excluding only taxes based solely on Panaya’s net income. Taxes will not be deducted from payments to Panaya, except as required by applicable law, in which case Customer will increase the amount payable as necessary so that, after making all required deductions and withholdings, Panaya receives and retains (free from any liability for taxes) an amount equal to the amount it would have received had no such deductions or withholdings been made.
6.4. In the event of late payments which Customer failed to provide within third (30) days upon receiving corresponding notice from Panaya, Panaya shall assess interest on overdue payments at the rate of one percent (1%) per month, or the maximum rate allowed by law, without thereby derogating from other rights and remedies afforded to Panaya under the Agreement or under any applicable law. Notwithstanding the above, the Customer shall bear any collection fees and costs, including attorney fees, occurred by Panaya in its efforts to collected unpaid fees from Customer.
7.1. This MSA and referred exhibits, commence on the Effective Date and continues until terminated as set forth herein (“Term”). The parties may renew or enter into future purchases, subscriptions or services by signing a new Subscription Order. Notwithstanding anything herein, this Agreement shall remain in full force and effect during the term of any Subscription Order.
7.2. Each party may terminate the Agreement, upon prior written notice at any time, as long as there are no effective Subscription Orders or if the Subscription Term was completed (“Termination for Convenience”). For avoidance of doubt, during the Subscription Term neither party may terminate for convenience, the Customer may, upon Panaya’s written consent, terminate the Agreement for convenience during a Subscription Term solely if and to the extent that the full amount of the Subscription Order was made.
7.3. If a party materially breaches any provision of this Agreement or any Subscription Order, including failure to provide payments to Panaya as detailed above, and fails to cure such breach within thirty (30) days of receipt of written notice from the non-breaching party, the non-breaching party may terminate this Agreement or any Subscription Order affected by the breach (“Termination for Cause”). Termination under this Section does not limit either party from pursuing any other remedies available to the party, including, but not limited to, an injunctive relief. Solely in the event of Termination for Cause will the Customer by eligible to receive pro-rate refunds of pre-payments made which were not used due to the Termination for Cause.
7.4. Upon expiration or termination for any reason of the Agreement, the following will apply: (i) Customer shall cease access to or use the Account and the Services; (ii) each party will promptly return to the other party all Confidential Information of the other party in its possession or control, except as otherwise agreed by the parties or as required by applicable laws; (iii) Panaya shall, upon Customer’s request, and to the extent Customer is not able to do so through the Account, delete all Customer Data unless otherwise required by law; and (iv) expiration or termination for any reason of the Agreement shall not derogate from rights and obligations accrued prior to the effective date of expiration or termination, and shall not relieve the Customer from its obligation to pay the applicable consideration that remains unpaid or limit either party from pursuing other available remedies.
7.5. The following provisions shall survive terminations: Section 6 Payment, Fees and Taxes; Section 10 Warranties and Disclaimers; Section 7.4 Effect of Termination, Section 8 Ownership, 11 Limitations of Liability, 12 Indemnification, 9 Confidentiality.
8.1. Except as expressly set out in this Agreement, neither party grants the other any rights or licenses to its intellectual property under this Agreement. As between the parties, Customer owns all intellectual property and other rights in Customer Data and the Results, provided to Panaya or used with the Service. Panaya retain all intellectual property and other rights in the Service, Documentation, Panaya Technology, Platform and any support or training, including any deliverables and related source code, technology, templates, formats and dashboards, including any modifications or improvements and including the Usage Data.
8.2. If Customer elects to provide any suggestions, comments, improvements, ideas, or other feedback relating to the Services (“Feedback”), Customer acknowledges and agrees that Panaya may incorporate into the Services any such Feedback without any obligation, payment, or restriction.
9.1. The Receiving Party shall keep the Disclosing Party’s Confidential Information confidential and secure and shall use at least the same standard of care to protect the Disclosing Party’s Confidential Information as the Receiving Party employs for the protection of its own proprietary information of a similar nature, but in no event less than a reasonable standard of care. The Receiving Party shall promptly notify the Disclosing Party in writing of any actual or suspected loss or unauthorized use, disclosure, or access of the Disclosing Party’s Confidential Information of which it becomes aware, and take all steps necessary to limit, stop, or otherwise prevent such loss or unauthorized use, disclosure, or access.
9.2. The Receiving Party will restrict the possession, knowledge, and use of the Disclosing Party’s Confidential Information to: (i) its and its Affiliates’ officers, directors, employees, consultants, and subcontractors who have a need to know such Confidential Information for purposes directly related to the exercise of its rights and discharge of its responsibilities as set forth in this Agreement; and (ii) external auditors and legal advisors (collectively, “Representatives”). Prior to any such disclosures, the Receiving Party will inform the Representatives of the confidential nature of the Disclosing Party’s Confidential Information and the non-disclosure requirements and limitations on use set forth herein. The Receiving Party shall take reasonable actions, legal or otherwise, necessary to cause its Representatives to comply with the provisions of this Section 9 and to prevent any unauthorized disclosure of the Disclosing Party’s Confidential Information by any of them. The Receiving Party shall be responsible for the acts and omissions of its Representatives with respect to the Disclosing Party’s Confidential Information.
9.3. The obligations set forth under this Agreement as for Confidential Information does not apply to information which the Receiving Party is able to demonstrate: (i) is at the time of disclosure or subsequently becomes generally available to the public, other than as a result of a breach of the Agreement by the Receiving Party; (ii) was previously in the possession of the Receiving Party prior to its disclosure hereunder; (iii) is independently developed by the Receiving Party without reliance on, use of or reference to the Confidential Information and without any breach of the terms of the Agreement; or (iv) was lawfully received by the Receiving Party from a third party having rights to disclose, and under no confidentiality obligations with respect to, such Confidential Information.
9.4. Notwithstanding anything to the contrary contained herein, the Receiving Party may disclose Confidential Information of the Disclosing Party pursuant to an order made pursuant to applicable law, regulation or legal process, provided that: (i) to the extent permitted under applicable law, the Receiving Party gives the Disclosing Party prompt written notice of such order so that the Disclosing Party has an opportunity to seek a protective order, confidential treatment, or other appropriate remedy to such order; (ii) the Receiving Party provides the Disclosing Party with all reasonable assistance, at the Disclosing Party’s expense, in opposing such required disclosure or seeking a protective order or confidential treatment for all or part of such Confidential Information; and (iii) the Receiving Party discloses only such portion of the Confidential Information as is either permitted by the Disclosing Party or required by the court, tribunal, governmental agency or other authority, subject to any protective order or confidential treatment obtained by the Disclosing Party.
10.1. Each party hereby represents and warrants that: (i) it has the full legal authority to engage and contract under this Agreement; and (ii) nothing contained in the Agreement nor the performance thereof shall place such party in breach or default of any obligation or other agreement, law or regulation by which it is bound or to which it is subject, or requires the consent of any person or entity.
10.2. Panaya warrants to Customer that: (i) Panaya is the owner and has the right to perform, deliver, and license the Services and Documentation; (ii) it has the professional skills and knowledge necessary in order to provide the Services and where applicable, the Service specifications; (iii) the Services will comply with the Documentation, including the Panaya’s Code of Conduct, and are provided in compliance with applicable laws except to the extent any breach of the Agreement by Customer causes Panaya to be in violation of applicable law; and (iv) Panaya will not materially decrease the functionality or overall security of the Service or Platform, and will use reasonable efforts designed to ensure that the Service, are free of any viruses, malware or similar malicious code (“Performance Warranty”). Customer’s sole and exclusive remedies and Panaya’s sole obligations for Panaya’s breach of the Performance Warranty is to make best commercial efforts to remove any such virus or disabling code at Panaya’s sole cost and expense and to resume to agreed service level availability. If Panaya determines such remedy to be impracticable, either party may terminate the affected Subscription Term. Panaya will then refund to Customer any pre-paid, unused fees for the terminated portion of the Subscription Term.
10.3. EXCEPT AS SET FORTH UNDER THIS AGREEMENT, THE SERVICES AND THE DOCUMENTATION ARE PROVIDED “AS IS”. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT (I) NO WARRANTIES, EXPRESS OR IMPLIED, ARE MADE BY PANAYA TO CUSTOMER, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, WHICH ARE SPECIFICALLY EXCLUDED; AND (II) PANAYA DOES NOT WARRANT THAT ANY INFORMATION, COMPUTER PROGRAM, EFFORTS OR ANY SOFTWARE OR SERVICES PROVIDED BY PANAYA OR ANY INFRASTRUCTURE PROVIDER WILL FULFILL ANY OF CUSTOMER’S PARTICULAR PURPOSES OR NEEDS, NOR DOES PANAYA WARRANT THAT THE OPERATION OF, OR ACCESS TO, THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. PANAYA WILL NOT BE LIABLE IN ANY MANNER FOR ANY RESTRICTED INFORMATION RECEIVED FROM OR ON BEHALF OF CUSTOMER IN BREACH OF THIS AGREEMENT.
11.1 EXCEPT FOR EXCLUDED CLAIMS SET FORTH BELOW, TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS, INTERRUPTION OF BUSINESS OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THEIR POSSIBILITY IN ADVANCE. FURTHER, EXCEPT FOR EXCLUDED CLAIMS OR CLAIMS THAT CANNOT BE LIMITED SUBJECT TO APPLICABLE LAWS, EACH PARTY’S ENTIRE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED IN AGGREGATE THE AMOUNTS PAID TO PANAYA FOR THE SERVICES GIVING RISE TO THE LIABILITY DURING THE TWELVE (12) MONTHS PRECEDING THE FIRST EVENT OUT OF WHICH THE LIABILITY AROSE. LIMITATIONS OF LIABILITY APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE AND WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.
11.2. “Excluding Claims” shall include Customer’s payment obligations, either party’s breach of confidentiality, either party’s gross negligence, willful misconduct or fraud. As set forth above, such claims shall be excluded from the general limitation of liability set froth in Section 11.1 above.
11.3. No actions may be brought against Panaya arising from or in connection with the Agreement later than one (1) year following the effective date of the expiration or termination for any reason of the Agreement.
12.1. Each party (“Indemnifying Party“) shall indemnify, defend and hold harmless, the other party and its respective affiliates, officers, directors, shareholders, or representatives (“Indemnified Party“) from any and all demands, judgments, awards, losses, damages, expenses, claims and liabilities, and all related costs, including reasonable legal fees incurred by Indemnified Party as a result of or arising out of a third party claim concerning (each, a “Claim“) Indemnifying Party’s: (i) breach of third-party intellectual property rights; and (ii) gross negligence, willful misconduct or fraud.
12.2. The foregoing indemnity by Panaya shall not apply if the infringement arises out of: (i) the Services being modified by, combined with, added to, interconnected with or used with any equipment, apparatus, device, data, software or service not supplied or approved by Panaya in writing; or (ii) use of Services other than in accordance with its Documentation.
12.3. If a Claim for which Customer is entitled to be indemnified under Section 12.1 above has occurred, or in Panaya’s opinion is likely to occur, Panaya shall, at Panaya’s expense, do one of the following: (i) procure for Customer the right to continue using the affected Services; (ii) replace with non-infringing alternates or modify the relevant Services so that they become non-infringing but its functionality after modification is substantially equivalent; or (iii) cease providing the Services and refund any prepaid fees applicable to the period after the Services has ceased. The collective obligations of Panaya pursuant to Section 12.1(i) state the sole and exclusive liability of Panaya, and Customer’s sole and exclusive remedy, with respect to intellectual property infringement or misappropriation.
12.4. The obligations under this Section will only apply if the Indemnified Party: (i) promptly notifies the Indemnifying Party, in writing, regarding the claim; (ii) permits the Indemnifying Party to control the defense and settlement of the claim; and (iii) reasonably cooperates with the Indemnifying Party (at the Indemnifying Party’s expense) in the defense and settlement of the claim. In no event will Indemnifying Party agree to any settlement of any claim that involves any negative commitment of the Indemnified Party, without its consent.
13.1. Panaya obtain and maintain a policy or policies of insurance with reputable insurance companies providing the officers and directors of the Company with coverage for losses from wrongful acts, or to ensure the Company’s performance of its indemnification obligations under this Agreement, including applicable cyber insurance policies. From time to time, Panaya in its sole discretion shall make the good faith determination whether such policies shall be updated.
14.1. Each party shall perform its obligations in a manner that complies with all applicable laws and regulations, compliance with which is required of such party or for which such party is responsible hereunder.
14.2. Panaya reserves the right to modify, correct, or amend the terms of the MSA at any time in its sole discretion, without any notice, effective immediately. In the event of a material change Panaya will provide the Customer with prior notice before such changes. The most current version of this MSA will be reflected under the “Last Updated” date that appears in the header of this MSA.
14.3. This Agreement forms the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous representations, understandings, agreements, or communications between the Parties, whether written or verbal.
14.4. Neither party shall have the right to assign this Agreement, or any of its rights or obligations hereunder, without the prior written consent of the other party. Notwithstanding the foregoing, Panaya may assign its rights and obligations under this Agreement to an Affiliate, or to any successor by way of merger, acquisition, or sale of all or substantially all of Panaya’s assets.
14.5. Each party is an independent contractor and as such will not have any authority to bind or commit the other. Nothing herein shall be deemed or construed to create a joint venture, fiduciary or agency relationship between the parties for any purpose.
14.6. Neither party shall be deemed to be in default of any provision of this Agreement, or for failure in performance of its obligations hereunder (excluding payment obligations), resulting from acts or events beyond the reasonable control of such party, including acts of God, civil or military authority, acts or threats of terrorism, civil disturbance, war, riot, strike or labor dispute (not related to either party’s workforce), fires, floods, infectious disease, or act of government (each a “Force Majeure Event”). Such Force Majeure Event, to the extent it prevents a party’s performance or any other undertaking under this Agreement, will extend the time for performance for as many days beyond the applicable performance date as is required to correct the effects of such Force Majeure Event.
14.7. No provision of this Agreement shall be deemed waived, and no breach shall be deemed excused unless such waiver or consent is in writing and signed by the Party claimed to have waived or consented. No consent by either party to, or waiver of, a breach by the other, whether express or implied, shall constitute consent to, waiver of, or excuse for any different or subsequent breach.
14.8. The Agreement shall be governed and construed by the laws of the State of New York, United States, without giving rise to any conflict of law provisions therein. The parties hereby agree to the exclusive jurisdiction of the courts of the State of New York, USA.
14.9. Should any or all of the provisions of the Agreement be determined to be invalid, unlawful, or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions of the Agreement shall not in any way be affected or impaired by such determination and will remain in full force and effect, and the provision affected will be construed to be enforceable to the maximum extent permissible by law.
14.10. The Services may be subject to export restrictions and import restrictions of the U.S. and other jurisdictions, and Customer shall comply with all applicable export and import control laws and regulations in its access or use of the Panaya Services, the Customer Account or when authorizing the use of the Authorized Users. Customer shall not (and shall not allow any Authorized Users to) permit access to, or use of, the Services by a person or in a country embargoed by, or in violation of, any applicable export laws or regulation. Customer must not (and must not allow anyone else to) export, re-export, transfer or disclose the Service or Platform or Results: (a) to (or to a national or resident of) any U.S. embargoed jurisdiction, (b) to anyone on any U.S. or applicable non-U.S. restricted- or denied-party list, or (c) to any party that Customer has reason to know will use the Service and Platform in violation of applicable export Law.
14.11. In the event of any conflict or inconsistency between the terms of the Subscription Order, the MSA and the DPA, the following shall prevail: the Subscription Order prevails on the MSA, and the DPA shall prevail solely to the extent the matter is subject to data protection regulations or personal data processing.
14.12. The parties agree that if a URL contained in this Agreement does not work or has stopped working, it will notify the other party and such party will then repair or create a new URL to replace the URL.
