SaaS Terms & Conditions

TERMS AND CONDITIONS

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These Terms (“Terms”) describe your rights and responsibilities when using the Subscription Services (defined below). If you are a Subscriber, these Terms will apply to your access and use of the Subscription Service, whether that access and use is by you or your affiliates, employees, contractors and others that you permit to use the Subscription Service or your Authorized Users. If you have been invited to use the Service by a Subscriber, the User Terms (“User Terms”) govern your access to and use of the Service. 

These Terms form a contract between Subscriber and Pani Energy Inc. (Pani, “we”, “us” and “our”). “Subscriber” is the company, organization or other legal entity described in the Order Form (also referred to as “Subscriber”, “you” and “your”).  By completing the Order Form, clicking a box indicating your acceptance of these Terms, accessing or using the Subscription Service or allowing any Authorized User to access or use the Subscription Service, you agree to be bound by these Terms. If you enter into these Terms on behalf of a company, organization or other legal entity, you represent and warrant that you have the authority to bind that entity to these Terms. These Terms, any Order Form entered between the Parties from time to time, and any documents, policies and procedures incorporated herein by reference, all as may be amended from time to time as permitted herein, are collectively referred to as the “Agreement”.  This Agreement will become effective on the date that you accept the Terms or access or use the Services (“Effective Date”).  Pani reserves the right to reject any Order Form and prevent access to the Services.

If you are not of the age of majority in your jurisdiction, do not agree with these Terms or otherwise do not have the authority to enter into these Terms, you must not access or use the Subscription Service.

1.    SUBSCRIPTIONS AND LICENCES
1.1    Subscriber subscribes for and will pay the Fees for, and Pani will provide, the Subscription Services and other Services to Subscriber and/or to each Subscriber Affiliate as set out in each Order Form (each, a “Subscription”), as may be amended as permitted hereunder. The Order Form may offer different types of Subscriptions and plans related to those Subscriptions (“Subscription Plans”).  
1.2    Subject to the terms and conditions of this Agreement, including the restrictions set forth in Section 2, Pani grants to Subscriber a nonexclusive, non-transferable, worldwide, revocable right and license during the term of this Agreement to: (a) permit its Authorized Users to access and use the Software via each Subscription Service for which Subscriber has a valid and current Subscription pursuant to an Order Form for Subscriber’s Internal Use;  (b) permit the Authorized Users of Subscriber Affiliates to access and use the Software via the Subscription Service for which Subscriber has a valid and current Subscription pursuant to an Order Form for the Internal Use of the Subscriber Affiliates and/or Subscriber, as applicable, provided that such Subscriber Affiliates comply with the terms and conditions of this Agreement applicable to Subscriber’s access and use of the Software via each Subscription Service.  Subscriber acknowledges each Authorized User will be required to create an individual user account and password and accept the User Terms to obtain access to the Services.  Authorized User accounts are non-transferable and, as such, Subscriber shall ensure that Authorized Users do not share user accounts or passwords.  Subscriber is responsible for ensuring all Authorized Users comply with these Terms and the User Terms. Further restrictions on the Subscription, related to the specific Subscription Plan selected, are set out in the Order Form.    
1.3    The initial term of each Subscription will commence on the effective date of the applicable Order Form and run for a period of 12 months (the “Initial Term”), unless otherwise specified in an applicable Order Form, including with respect to a subscription for a Pilot Period.  Subject to the termination provisions in Section 13 of this Agreement, each Subscription will automatically renew for an unlimited number of additional 12 month terms (each such 12 month term being a “Renewal Term” and collectively, the “Renewal Terms”).  UNLESS OTHERWISE SPECIFIED IN AN APPLICABLE ORDER FORM AND SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, PANI WILL PROVIDE THE SUBSCRIPTION SERVICE TO SUBSCRIBER, AND SUBSCRIBER WILL RECEIVE AND PAY FOR THE SUBSCRIPTION SERVICE, FOR A MINIMUM OF 12 MONTHS.
1.4    Pani may agree to provide the Subscription Services for a pilot period as set out in the Order Form (“Pilot Period”).  If a Pilot Period is provided, then, notwithstanding anything else in these Terms, in connection with such Pilot Period (1) no fees will apply, except for any pilot use fee specified in the Order Form, (2) the Services are provided “AS IS” and no warranty obligations of Pani, set out in these Terms, will apply, and (3) Subscriber may terminate this Agreement and all of its rights hereunder by providing Pani written notice thereof no less than 10 days prior to the end of the Pilot Period; otherwise, this Agreement shall continue in effect for the Initial Term (subject to earlier termination as provided in these Terms).  

 

2.    RESTRICTIONS AND RESPONSIBILITIES
2.1    The licenses granted in Section 1.2 are explicitly conditioned on Subscriber’s adherence to the following restrictions and compliance with its responsibilities as set forth in Section 2.2, below.
2.2    Except as expressly permitted in this Agreement or with the prior written approval of Pani, the Subscriber may not (and may not permit or cause any Subscriber Affiliate or Authorized Users to) (i) access or use any Subscription for any purposes other than the Internal Use of Subscriber or Subscriber Affiliates; (ii) assign, sublicense, rent, lease, grant a security interest in, or otherwise transfer any rights in the Software; (iii) access or use the Software and Services other than as permitted hereunder in conjunction with valid and current Subscription Services;  (iv) access or use the Software or Services in a manner that contravenes any provisions of this Agreement or applicable statutes, laws, ordinances, or regulations; (v) allow any third party to have access to the Software or Services, other than Subscriber Affiliates and Authorized Users; (vi) copy, distribute, modify, translate, reverse engineer, decompile, dissemble, upload or post the Software on a network, bulletin board, intranet, extranet or web site, create derivative works based on the Software, or merge the Software into any other software; (vii) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Software; or (viii) introduce Malicious Software into the Services.  Subscriber shall require all Authorized Users to comply with the terms of this Agreement.

 

3.    FEES AND PAYMENT  
3.1    Subscriber shall pay Pani the fees specified by Pani ("Fees") for the Services in the Order Form and for the selected Subscription Plan.  In the Order Form, Subscriber shall make payments of Fees by third party payment service as designated in the Order Form.  Pani may agree to invoice Subscribers in certain cases.  If Subscriber pays by third party payment service, Subscriber shall provide Pani with the required account information to allow Pani to charge the applicable account.  These charges will be applied to Subscriber’s account in advance of the period in which the Services are to be provided or made available to Subscriber.  For example, for a monthly billing cycle, Pani shall charge Subscriber’s account at the beginning of the month for the entire month.  By providing Pani with Subscriber’s payment account information, Subscriber authorizes Pani to charge the applicable account for the Services.  All payments shall be made in Canadian dollars.
3.2    If Pani agrees to proceed by way of invoicing, all Fees will be invoiced in advance, unless otherwise specified in an Order Form.  If payments are to be made after Services are rendered, Subscriber agrees to pay, within 30 days following receipt of the invoice.
3.3    Pani may adjust the Fees charged to the Subscriber during any Renewal Term by providing a notice of such adjustment in Fees.
3.4    Other than as expressly set out in this Agreement, all Fees paid under this Agreement are non-refundable.
3.5    All Fees are exclusive of and Subscriber will pay all applicable federal, provincial, state, and local sales, use, value added, surcharges, excise, franchise, property, gross receipts, license, privilege, and any other taxes, duties, levies or fees (collectively, “Taxes”) assessable with respect to the Services.  If any authority imposes any Taxes, excluding those based on Pani’s net income, upon any transaction under this Agreement, Subscriber agrees to pay that amount as specified in an invoice or to supply such documentation as Pani may reasonably require to confirm an exemption from the payment of such Taxes. 
3.6    Subscriber shall maintain the accuracy, completeness and effectiveness of Subscriber’s billing information (including without limitation ensuring an active account with sufficient credit to make payments of all amounts due is authorized and included in the billing information) and shall immediately make appropriate changes to Subscriber’s account of any changes to such account or other billing information. Should Subscriber fail to do so, Pani shall have the right to immediately suspend, terminate or cancel Subscriber’s access (and the access of Authorized Users) to the Services without notice to Subscriber and shall have no liability to Subscriber or any third party for doing so.  If any Fee becomes delinquent and continues delinquent for more than 30 days, Pani may issue a notice to the Subscriber of such delinquency (a “Fee Delinquency Notice”). At Pani’s option, all or any part of the Services provided under this Agreement may be withheld until Subscriber has paid all Fees specified in a Fee Delinquency Notice.  This Agreement may be terminated if any such delinquent Fees as set out in the Fee Delinquency Notice remain unpaid for a further 30 days after the receipt by the Subscriber of a Fee Delinquency Notice. Reinstatement of the Service(s) following any such suspension or termination will be on such terms, and subject to guarantees, reinstatement fees and/or security deposits, as Pani may determine in its sole discretion, acting reasonably.  
3.7    All amounts remaining unpaid when due will bear interest at the rate of 1.5% per month compounded monthly until paid in full.

 

4.    IMPLEMENTATION
4.1    Implementation of the Subscription Services will start as soon as commercially reasonably possible following the effective date of the applicable Order Form, subject to both Parties meeting their obligations described below.  Pani’s obligation to carry out implementation will be conditional on Subscriber paying all Fees owing as of the effective date of the applicable Order Form.
4.2    In addition to any obligations in an applicable Order Form, Subscriber will be responsible for the following:
a.    Subscriber will complete configuring network connections to connect to the Software with assistance from Pani and begin using the Software in a production environment (“Go Live Date”);
b.    before and during implementation, Subscriber will gather and submit any business information required by Pani to implement the Subscription Services, including, Plant Information.; and
c.    Subscriber is solely responsible for obtaining and securing all rights necessary to use any Subscriber Material in conjunction with the Subscription Service.

 

5.    SERVICE DELIVERY
5.1    Subscriber does hereby grant Pani a worldwide, royalty-free, non-exclusive license to access, view, transmit, store, process or otherwise Subscriber Materials as reasonably required to provide the Services hereunder.  Subscriber will cooperate with Pani, on a commercially reasonable basis and upon request, if Pani should require access to Subscriber’s personnel, facilities, information, data, computers, computer software or additional information to perform its obligations under this Agreement.
5.2    Subscriber will comply with and access, and Pani will perform, the Services according to applicable policies, terms of use and legal notices referenced herein, in any Order Form attached to or linked to from this Agreement or otherwise provided to Subscriber, as Pani may in its sole discretion, adopt or change from time to time.  Subscriber expressly agrees that Subscriber’s ongoing access and use of the Services will be deemed to be Subscriber’s agreement to such modifications.  
5.3    Subscriber agrees to notify Pani immediately if Subscriber suspects the Subscription Services are or may become unavailable to Subscriber due to any reason whatsoever outside of Pani’s control including but not limited to Malicious Software, malfunction or failure of server, hardware, internet service or any other protocol. 
5.4    The Subscriber acknowledges that the Services may be modified or upgraded by Pani from time to time in its sole discretion.  
5.5    Pani reserves the right, in its sole discretion, to temporarily or permanently disable or discontinue providing any specific functionality within a Subscription Service, provided that the core functionalities of such Subscription Service are not rendered inoperable, by providing the Subscriber with notification in writing.
5.6    Subscriber agrees that Pani will not be liable to Subscriber, any Subscriber Affiliate, or any Authorized User or any other third party for any modifications or disabling or discontinuance of all or any part of the Services done in accordance with this Agreement.   

 

6.    PRIVACY AND SUBSCRIBER MATERIALS
6.1    Pani agrees that all Subscriber Materials stored on the Subscription Service are and remain the property of Subscriber and it will not disclose to any third party, other than as necessary to provide the Services, any personal information of any Authorized User or that identifies the Subscriber or its business.  
6.2    Pani will comply with privacy and data protection laws applicable to the storing and transmitting of personal information received from or in relation to Subscriber. Pani will also comply with its Privacy Policy.  
6.3    Subject to Pani complying with Sections 6.1 and 6.2 above, Subscriber authorizes Pani to collect, use and otherwise deal with all Subscriber Materials stored by Pani as part of the Subscription Service or otherwise received by Pani from Subscriber or Authorized Users to create aggregated, anonymized,  general information (including databases, reports, compilations or other versions of such information) and to use such aggregated, anonymized,  general information in such a manner as Pani may determine, including without limitation, for case studies.  Subscriber is solely responsible for the quality, integrity, legality, reliability and appropriateness of the Subscriber Materials and for obtaining all rights, authorizations and consents required by Pani to provide the Subscription Service to Subscriber and otherwise process the Subscriber Materials, including rights in and to the Subscriber Materials from Authorized Users and others.
6.4    Notwithstanding any provision to the contrary herein, Subscriber agrees that all aggregated, anonymized, general information (including any databases, reports, compilations or other versions of such information) collected and created by Pani is and will remain the exclusive property of Pani as Pani Generated Data.  Subscriber is granted a limited, non-exclusive and perpetual license to use the Pani Generated Data regarding the Plant for its Internal Use.
6.5    Subscriber Input Data, including Plant Information, may be pushed to Pani through an API or third party hardware (“Data Connection Point”).  Pani makes no representation and provides no warranty regarding the security of the Data Connection Point.  Any Subscriber Input Data and Plant Information provided to Pani through the Data Connection Point is provided at Subscriber’s own risk.

 

7.    HARDWARE, SUPPORT, AND TRAINING
7.1    Subscriber acknowledges and agrees that Pani will not be responsible for any Losses incurred by Subscriber, Subscriber Affiliates or their Authorized Users in connection with the Hardware except to the extent arising from the acts or omissions of Pani.
7.2    Subscriber will have access to any Documentation.  Subscriber may provide support contact information to Subscriber, which may include e-mail or chat support.  
7.3    Pani may make available to Subscriber training sessions for such Fees and on such terms and conditions as Pani may determine.    

 

8.    OWNERSHIP AND INTELLECTUAL PROPERTY
8.1    All right, title and interest in and to the Software, the Documentation, the Pani Pre-Existing Data and the Pani Generated Data and any copies thereof, and all documentation, code and logic which describes and/or comprises the Software, Documentation and related Services are and will at all times remain the sole property of Pani or its licensors, including all ownership rights to patents, copyrights, trademarks, trade names, goodwill, trade secrets and other intellectual property rights (collectively, “Intellectual Property”) in connection therewith.  Subscriber’s right to use the Software and Documentation is conditional upon and limited by the terms and conditions of this Agreement.  No modification by the Subscriber of the Software or any part thereof will in any way reduce or eliminate Pani’s ownership rights in and to the Software and its components.
8.2    Pani or its licensors owns all Intellectual Property rights in the Software and Documentation as delivered.  Pani further owns the Pani Pre-Existing Data and the Pani Generated Data.  If the Subscriber requests Subscriber-specific customizations or alterations or customizations to the Software or the Services, and Subscriber neither participates in the development nor provides any Intellectual Property to the development, Pani will own all Intellectual Property rights in any such customizations or alterations and Subscriber agrees to take any action or deliver any document required to confirm such ownership rights on the part of Pani.  If Subscriber and Pani jointly develop new Intellectual Property rights related to the Software or the Services or Subscriber contributes its Intellectual Property to a customization process, Subscriber and Pani will enter into a separate written agreement regarding the ownership and use of any new or resulting Intellectual Property rights. 
8.3    The Subscriber acknowledges that Pani has expended substantial time, effort and funds to create and deliver its Intellectual Property. Pani's Intellectual Property will remain the exclusive property of Pani.  The Subscriber will not obtain any rights to Intellectual Property unless such rights are explicitly granted by this Agreement or subsequent agreements entered into by the Parties pursuant to this Agreement. Intellectual Property may, however, be used as authorized by this Agreement or upon the receipt of the prior written approval of Pani. The right of Subscriber to use of the Intellectual Property of Pani will end upon termination or expiration of this Agreement.
8.4    Subscriber hereby grants Pani a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to: (a) incorporate into the Subscription Services or the Software or otherwise use any suggestions, enhancement requests, recommendations or other feedback Pani receives from Subscriber without any further permissions of or notifications to Subscriber and (b) use the Subscriber’s name, as a customer of Pani, in sales and marketing materials and further use and display Subscriber’s name and any logo (including trademarks) in such materials, including without limitation, on Pani’s website. 

 

9.    CONFIDENTIALITY AND NON-DISCLOSURE
9.1    Receiving Party agrees to hold Confidential Information in confidence, using not less than a reasonable standard of care, and agrees to use the Confidential Information only for purposes of and relating to the Subscription Services. Receiving Party agrees that it will limit disclosure of the Confidential Information and will only disclose Confidential Information to those employees, directors, officers, counsel or consultants of the Receiving Party, Receiving Party’s Affiliate or Authorized Users (collectively, the “Representatives” and individually, each a “Representative”) who have a need to know such Confidential Information in connection with the Subscription Services and who are bound by obligations of confidentiality and non-disclosure similar to those set forth in this Agreement.  Prior to providing the Confidential Information to any Representative or Representatives, the Receiving Party will notify such Representative or Representatives that such information is Confidential Information and must be kept in confidence as set forth in this Agreement.  
9.2    All Confidential Information will, at all times, remain the sole property of Disclosing Party.  The disclosure of Confidential Information to the Receiving Party will not constitute an express or implied grant to Receiving Party or any of its Representatives of any rights to or under the Software Documentation, Pani Pre-Existing Data or Pani Generated Data.  At the earlier of either (i) the termination of this Agreement, or (ii) at Disclosing Party’s request, all Confidential Information in the Receiving Party’s possession or control will be either returned promptly to Disclosing Party or destroyed by secure means of destruction and the Receiving Party will provide to Disclosing Party written certification that all such Confidential Information has been either returned to Disclosing Party or destroyed.  Receiving Party may, upon providing written notice of same to Disclosing Party, retain copies of Confidential Information only if and to the extent that such retention is required by applicable law and will retain only that portion of the Confidential Information which is legally required for Receiving Party to comply with such law.  Notwithstanding the return, destruction or retention of the Confidential Information, Receiving Party will continue to be bound by its confidentiality obligations hereunder concerning Confidential Information in accordance with the terms of this Agreement.     
9.3    Prior to making any disclosure pursuant to Subsection 14.1b of this Agreement, Receiving Party will: (i) to the extent legally permissible, immediately notify Disclosing Party of the required disclosure upon receipt of a governmental or court order; and (ii) cooperate with Disclosing Party in making, if available under applicable law, a good faith effort to obtain a protective order or other appropriate determination against or limiting disclosure or use of the Confidential Information, at no cost to the Parties. 
9.4    The Receiving Party agrees that it will notify Disclosing Party immediately upon discovery of any breach of the confidentiality provisions of this Agreement by the Receiving Party or its Representatives, and will cooperate with Disclosing Party in every reasonable way to help Disclosing Party regain possession of the Confidential Information and prevent against its further unauthorized disclosure or use.  The Receiving Party will enforce the confidentiality obligations of this Agreement against its Representatives during and after the term of their engagement.  When Subscriber is the Receiving Party, Subscriber will be fully responsible for any breach of this Agreement by its Authorized Users, as well as the Authorized Users of Subscriber Affiliates.

 

10.    WARRANTIES 
10.1    Pani hereby warrants to Subscriber that Pani is the owner of the Software (excluding any open source components therein) or otherwise has the right to grant to Subscriber the rights set forth in this Agreement and that the Software (excluding any open source components) does not infringe the copyright, US patent, Canadian patent, or misappropriate the trade secrets, of any third party.  As Subscriber’s sole and exclusive remedy, and Pani’s sole and exclusive liability to Subscriber in the event of any breach or threatened breach of the foregoing warranty, in addition to complying with its indemnity obligations hereunder, Pani will, at its option, either: (i) procure, at Pani's expense, the right for Subscriber to use the Software and all parts thereof, (ii) replace the Software or any part thereof that is in breach with Software of comparable functionality that does not cause any breach, or (iii) if neither of the options set forth in subsection (i) or (ii) is commercially reasonable, terminate the Subscription applicable to the Software in breach of the foregoing warranty and provide a full refund of any Fees or other amounts paid by Subscriber to Pani during the 90 day period prior to the date of termination with respect to such Subscription Service or portion thereof that was inoperable.
10.2    Pani provides the following limited warranties:
a.    with respect to Subscription Services, Pani warrants to Subscriber that the Subscription Service will perform substantially in accordance with its accompanying Documentation from and after the Go Live Date.  As Subscriber’s sole and exclusive remedy and Pani’s sole and exclusive liability to Subscriber, in the event of any breach or threatened breach of the foregoing warranty, if Pani receives notice of such breach, (i) Pani will, at its option, either repair or replace the Software associated with the non-performing Subscription Service, or (ii) if Pani is unable, within 90 days of notification, to correct a defect that Subscriber has notified Pani about, Subscriber will be entitled to terminate the applicable Subscription Service upon written notice and request a full refund of any Fees or other amounts paid by Subscriber to Pani during the 90 day period with respect to such Subscription Service; and  
b.    with respect to all Services other than Subscription Services, Pani warrants to Subscriber that each Service will be performed in a good and workmanlike manner.  In the event of any breach or threatened breach of the foregoing warranty, as Subscriber’s sole and exclusive remedy and Pani’s sole and exclusive liability to Subscriber, if Pani receives notice of such breach, Pani will re-perform the applicable Service.
The foregoing limited warranties do not apply to defects resulting from: (i) improper or inadequate implementation, maintenance or configuration of Software performed by anyone other than authorized representatives of Pani; (ii) any inadequate or improperly installed hardware; or (iii) Subscriber network failures or failures of internet service at the Plant.
Subscriber acknowledges that Pani is not liable, among other things, if the Software ceases to operate in Subscriber’s IT environment due to changes to such environment that do not comply with the Specifications, or if Subscriber has modified the Software.  
10.3    THE WARRANTIES SET FORTH IN SECTIONS 10.1 AND 10.2 ARE IN LIEU OF ALL OTHER WARRANTIES BY PANI, EXPRESS OR IMPLIED, AND PANI (INCLUDING ITS AFFILIATES AND ITS AND THEIR OFFICERS, DIRECTORS, AGENTS AND ASSOCIATES) HEREBY DISCLAIMS AND SUBSCRIBER HEREBY WAIVES ALL REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, NON-INFRINGEMENT,  FITNESS FOR A PARTICULAR PURPOSE AND COMPLIANCE WITH APPLICABLE LAWS.  PANI DOES NOT WARRANT AND SUBSCRIBER HEREBY WAIVES ANY WARRANTY THAT USE OF OR ACCESS TO THE SUBSCRIPTION SERVICES OR SOFTWARE BY SUBSCRIBER WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE OBTAINED FROM PANI OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY BY PANI NOT EXPRESSLY STATED IN THESE TERMS.  SPECIFICALLY, PANI PROVIDES NO WARRANTY ON IMPLEMENTATION OF THE RESULTS OF THE SUBSCRIPTION SERVICES WITHIN A PLANT:  ALL DECISIONS REGARDING IMPLEMENTATION OF SUCH RESULTS ARE THE SOLE RESPONSIBILITY OF SUBSCRIBER. EXCEPT AS SET FORTH HEREIN TO THE CONTRARY, PANI DOES NOT MAKE ANY WARRANTY AND SUBSCRIBER HEREBY WAIVES ANY AND ALL WARRANTIES AS TO THE RESULTS OBTAINED FROM USE OF THE SOFTWARE, THE SERVICES OR AS TO THE ACCURACY, COMPLETENESS, TIMELINESS OR RELIABILITY OF THE SOFTWARE, THE SERVICES OR RECOMMENDATIONS MADE BY PANI.  PANI PROVIDES NO WARRANTY ON THE HARDWARE WHICH IS PROVIDED “AS IS”.
10.4    Some jurisdictions do not allow the exclusion of implied warranties, which means that some of the above exclusions may not apply to Subscriber. IN THESE JURISDICTIONS, PANI’S IMPLIED WARRANTIES WILL BE EXCLUDED TO THE GREATEST EXTENT PERMITTED BY LAW AND PANI WILL ADHERE SOLELY TO THE MINIMUM AMOUNT OF IMPLIED WARRANTIES NECESSARY TO COMPLY WITH APPLICABLE LAW. 
10.5    Subscriber represents and warrants that it has all requisite corporate power, authority and capacity to enter into, execute, deliver and perform its obligations under this Agreement, and in doing so, Subscriber will not violate any obligations Subscriber has to any third party.  Subscriber further represents, warrants and covenants that it has all required permissions and consents to provide the Subscriber Input Data and the Plant Information to Pani in order to receive the Services.

 

11.    LIMITATIONS OF LIABILITY
11.1    UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL PANI, ITS AFFILIATES AND ITS AND THEIR OFFICERS, DIRECTORS, AGENTS AND ASSOCIATES BE LIABLE TO SUBSCRIBER, ANY SUBSCRIBER AFFILIATE, OR ANY AUTHORIZED USER OR ANY OTHER THIRD PARTY FOR:  (I) INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, PUNITIVE DAMAGES OR ANY SIMILAR DAMAGES INCLUDING IN CONNECTION WITH OR RELATING TO THIS AGREEMENT, THE SERVICES AND USE, PERFORMANCE AND OPERATION OF THE SOFTWARE, (II) DAMAGES TO THE PLANT FROM USE OF PANI PRE-EXISTING DATA, PANI GENERATED DATA OR OTHER RECOMMENDATIONS PROVIDED BY PANI; (III) LOSS OF DATA; (IV) LOST PROFITS OR LOST REVENUES; (V) BUSINESS INTERRUPTION;  (VI) DAMAGES PURSUANT TO ANY THIRD PARTY TERMS AND CONDITIONS;  OR (VII) CONTENT AND SERVICES OFFERED THROUGH THE SUBSCRIPTION SERVICES, REGARDLESS OF WHETHER PANI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE OR WHETHER SUCH DAMAGES ARE REASONABLY FORESEEABLE.
11.2    Without limiting the generality of the foregoing, Pani’s liability for Losses with respect to the Services or any portion of the Services, including but not limited to liability for any fundamental breach of this Agreement with respect to the Services or any portion thereof and regardless of the form of action, will not exceed:  (a) for Subscription Services, an amount equal to one monthly payment of the Monthly Subscription Fees paid by Subscriber with respect to the Subscription giving rise to liability hereunder;  and (b) for each Service other than Subscription Services giving rise to liability hereunder, an amount equal to one month’s Fees paid by Subscriber such Service.
11.3    IN JURISDICTIONS THAT DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR REQUIRE EXCLUSIONS AND/OR LIMITATIONS OF LIABILITY THAT ARE DIFFERENT THAN THOSE SET FORTH IN THIS SECTION 11, PANI’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. THE LIMITATIONS SET FORTH IN THIS SECTION 11 WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

 

12.    INDEMNITIES
12.1    Pani will indemnify, defend and hold harmless Subscriber for Losses on account of or arising from a third party claim that the Software (excluding any open source components therein) infringes the copyright, US patent, Canadian patent, or misappropriates the trade secrets, of such third party; provided, however, that Pani is promptly notified of any and all threats, claims, and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over the defence and all negotiations for a settlement or compromise.  The foregoing indemnification obligations will not apply with respect to Software or portions or components thereof (i) that are made in whole or in part in accordance with Subscriber specifications; (iii) that are modified after shipment other than by any party other than Pani or its contractors or agents, if the alleged infringement relates to such modification; or (iv) that are combined with third party products, processes, or materials or open source materials.
12.2    Subscriber will indemnify, defend and hold harmless Pani, its affiliates and its and their employees, directors and shareholders for any and all Losses arising from, or connected with (a) any use or misuse of the Software or Services by Subscriber, Subscriber Affiliates and their Authorized Users;  (b) any breach of this Agreement by Subscriber (including without limitation, any breach of a representation, warranty or covenant provided by Subscriber) or any act or omission by Subscriber Affiliates and Authorized Users that would be a breach of this Agreement if it were an act or omission by Subscriber; (c) the Hardware, provided however that Subscriber’s indemnification obligations will not apply to the extent that claims arise directly or indirectly from the acts or omissions of Pani; (d) the Subscriber Materials; (e) any claim by a Subscriber Affiliate or Authorized User arising as a result of or relating to this Agreement or the Subscription Services; and (f) any breach of terms and conditions in effect between Subscriber and the provider of the Hardware.   

 

13.    TERMINATION
13.1    Subject to Section 13.4, Subscriber will have the right to terminate any individual Subscription for any or no reason upon written notice to Pani provided not less than 90 days prior the end of the Initial Term or any Renewal Term to Pani. 
13.2    In addition to suspension for late or non-payment of Fees, Pani may immediately suspend Subscriber’s access to and use of the Service if Subscriber or any of its Authorized Users violate this Agreement. Pani will notify Subscriber of any activities that violates this Agreement and, at its sole discretion, may provide Subscriber with a period of 15 days to cure or cease such activities. If Pani provides a cure period and Subscriber does not cure or cease such activities within the above cure period, or if Pani believes that breach of this Agreement cannot be cured, Subscriber’s account and access to the Subscription Service will be terminated will be terminated for Subscriber and all Authorized Users. Pani may terminate your subscription immediately on notice to Subscriber if we reasonably believe that the Subscription Service is being used by Subscriber or its Authorized Users in violation of applicable law or if Subscriber becomes insolvent, takes any action consistent with insolvency or distress, or ceases to carry on active business.
13.3    Subscriber may terminate the Subscription if Pani materially breaches this Agreement and has not cured that breach within 30 days after Subscriber has provided written notice to Pani of the breach.  
13.4    In the event of termination in accordance with Section 13.1 or Section 13.2:
a.    Subscriber will remain liable for all Monthly Subscription Fees through the last day of the Initial Term or the then current Renewal Term of the Subscription, which fees will be pro-rated for the month in which the termination is effective; and
b.    Subject to receiving Fees in accordance with Section 13.4a, Pani will continue providing the Subscription Services for the applicable Subscription through the last day of the Initial Term or the then current Renewal Term.
13.5    This Agreement will automatically expire on the date of expiration or termination of the last Subscription entered into hereunder (i.e. when no Subscriptions are currently in effect).
13.6    Termination or cancellation of this Agreement or a Subscription in accordance with this Agreement will not terminate or cancel any payment obligation of Subscriber under this Agreement or other Order Forms remaining in effect, unless Subscriber terminates due to material breach.
13.7    Upon termination or expiration of this Agreement and the payment by Subscriber of any Fees or other amounts outstanding, Subscriber may request at any time within 12 months following termination or expiration of this Agreement and Pani will deliver to Subscriber upon such request a copy of Subscriber’s materials held on Pani’s system, in an industry standard format as determined by Pani in its sole discretion.  Following such 12 month period after termination or expiration, Pani will delete all of Subscriber’s materials from its systems and have no further obligation to Subscriber with respect to such data.  
13.8    The terms outlined in the following sections of the Agreement will survive any expiration or termination of this Agreement:  5.6, 6.1, 6.2, 6.3, 6.4, 6.5, 7.1, 8, 9, 10, 11, 12.2, 13.6, 13.7, 13.8 and Section 14 will survive the expiration or termination of this Agreement in its entirety, as will all defined terms required for the interpretation of any of the surviving Sections and subsections of this Agreement.

 

14.    GENERAL
14.1    In this Agreement the following terms will have the following meanings:
a.    “Authorized User” means any individual (including employees and contractors) authorized by Subscriber to use the Subscription Services including, for clarification, employees and contractors of Subscriber Affiliates.
b.    “Confidential Information” means all information disclosed by or on behalf of Pani or Subscriber (“Disclosing Party”) to the other party (“Receiving Party”) which is in tangible form and labeled “confidential” (or with a similar legend) or which a reasonable person would understand to be confidential given the nature of the information and circumstances of its disclosure. Confidential Information includes, without limitation, proprietary information, technical data, trade secrets or know-how, including, but not limited to, source code, research, product plans, products, services, customers, customer lists, markets, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, or other business information (and Pani’s Confidential Information specifically includes the Software, the Services, the Documentation, and the terms and conditions of this Agreement), BUT EXCLUDES information that (i) was previously known to Receiving Party at the time of disclosure by or on behalf of Disclosing Party without an obligation of confidentiality; (ii) was or is obtained by Receiving Party from a third party who is not known by the Receiving Party to be under an obligation of confidence to Disclosing Party with respect to such information; (iii) is or has become publicly known, through no wrongful act of the Receiving Party; (iv) was or is independently developed by Receiving Party without use of Confidential Information that has been disclosed pursuant to this Agreement, as evidenced by written record; or (v) was required to be disclosed in order to comply with applicable laws or regulations (including for securities law purposes) or with any requirement imposed by any governmental or court order but only then to the extent required for such compliance.
c.    “Disclosing Party” has the meaning given in Section 14.1b.
d.    “Documentation” means all user manuals, training materials, help files, and any other packaged documentation, issued from time to time by Pani to assist in and relating to the Services.
e.    “Fees” means all fees to be paid by Subscriber in relation to the Services provided by Pani referenced in the Order Form.
f.    “Go Live Date” has the meaning given in Section 4.2a.
g.    “Initial Term” has the meaning given in Section 1.3.
h.    “Internal Use” means the use of the Software in connection with Subscription Services for the internal business purposes of Subscriber, but expressly excludes the use of any Software or Services as a service bureau (i.e. receiving fees with respect to services provided to third parties). 
i.    “Launch Services” means the implementation services and training services (if designated on the Order Form) provided by Pani to enable Subscriber to use the Subscription Services.
j.    “Losses” means losses, expenses, claims, damages, actions, lawsuits, judgments, costs and expenses, including  reasonable lawyer’s fees, costs of investigation and defence. 
k.    “Malicious Software” means any software that brings harm to a computer system, including worms, viruses, trojans, spyware, adware and rootkits, which steal protected data, delete documents or add software not approved by a user.
l.    “Monthly Subscription Fees” has the meaning(s) given in the respective Order Form. 
m.    “Order Form” means the online form that Subscriber completed to obtain access to the Services.
n.    “Pani Generated Data” means data generated by Pani in connection with this Agreement and the Services, including data that is generated through the processing of the Subscriber Input Data through the Services.
o.    “Pani Pre-Existing Data” means data created, generated or obtained by Pani prior to or apart from this Agreement.
p.    “Party” means either Pani or Subscriber and “Parties” means both Pani and Subscriber.
q.    “Plant” means the water processing plant of the Subscriber identified in the Order Form.
r.    “Plant Information” means, with respect to the Plant, historical data (including sensor data and alarms,  process flow diagram, the Plant’s piping and instrumentation diagram, and any existing log book data for the Plant.
s.    “Receiving Party” has the meaning given in Section 14.1b.
t.    “Renewal Term” or “Renewal Terms” has the meaning given in Section 1.3.
u.    “Service” or “Services” means any one or more service, as the case may be, that Pani agrees to provide pursuant to this Agreement as set forth in an Order Form, which may include, without limitation, the Subscription Services, the Launch Services, and access to the Documentation. 
v.    “Software” means Pani software products developed from time to time, as well as all parts thereof and updates thereto, as identified in each applicable Order Form.
w.    “Specifications” means system, hardware, software, and telecommunications specifications and requirements for the Subscription Services as set out by Pani.   
x.    “Subscriber Affiliates” means any business entity controlled by, under common control with or controlling a Subscriber. 
y.    “Subscriber Applications” means web or other software services or applications developed or licensed by Subscriber that utilize or interact with the Software.
z.    “Subscriber Input Data” means data that is uploaded, submitted, posted, transmitted or otherwise provided by Subscriber to Pani under this Agreement and through the Services.
aa.    “Subscriber Material” means all Subscriber material or third party material used and provided by Subscriber or an Authorized User including Subscriber Input Data, Subscriber Applications and Plant Information accessible by, viewable on, loaded on, integrated with or otherwise associated with the Software and Services. 
bb.    “Subscription(s)” has the meaning given in Section 1.1. 
cc.    “Subscription Plan” has the meaning given in Section 1.1.
dd.    “Subscription Services” means Pani’s software-as-a-service subscription for use of the Software, or portions thereof, for which Subscriber receives a Subscription pursuant to this Agreement as identified in each Order Form. 
14.2    Pani will not be liable for any failure to perform its obligations under this Agreement or any failure of the Subscription Services or Software because of circumstances beyond the control of Pani, which such circumstances will include (without limitation) natural disaster, terrorism, riot, sabotage, labour disputes, war, any acts or omissions of any government or governmental authority, declarations of governments, laws, court orders, transportation delays, power or telecommunications failure not caused Pani.
14.3    This Agreement constitutes the entire agreement among the Parties with respect to the Software and Services, and supersedes all previous oral or written communications with respect to the subject matter of this Agreement.  
14.4    Nothing herein will be construed as creating a partnership relationship, employment relationship, joint venture relationship or agency relationship between the Parties, or as authorizing either Party to act as agent for the other. 
14.5    All notices, requests, demands or communications required or permitted pursuant or relating to this Agreement will be in writing or provided electronically and will be sent by (i) registered mail, postage prepaid, addressed to the Party’s address indicated in the Order Form or by overnight courier; or (ii) by email to the email addresses noted in the Order Form. Either Party may change its address by notice given to the other in the manner set forth in this paragraph. Notices sent by registered mail will be deemed given and received (i) 5 calendar days after they are mailed; (ii) 2 days after they are deposited in overnight courier; and (iii) email notices will be deemed given and received upon reply email confirming receipt.   Pani may also provide notice regarding amendments to this Agreement in accordance with Section 14.7.  
14.6    Waiver of breach of this Agreement will not constitute waiver of any other breach. Failing to enforce a provision of this Agreement will not constitute a waiver or create an estoppel from enforcing such provision. Any waiver of a provision of this Agreement will not be binding unless such waiver is in writing and signed by the Party waiving such provision. 
14.7    Subject to Section 5.2, alterations, modifications or amendments of provisions of this Agreement will not be binding unless such alterations, modifications or amendments are in writing and signed or accepted electronically by authorized representatives of Pani and Subscriber.  Pani may propose changes to this Agreement by way of notice through the Services.
14.8    The provisions of this Agreement will be deemed severable. In the event that any provision of this Agreement is determined by a court having jurisdiction to be unenforceable or invalid, such provision will nonetheless be enforced to the fullest extent permitted by applicable law, and such determination will not affect the validity and enforceability of any other remaining provisions of this Agreement.
14.9    All of the terms and provisions of this Agreement will inure to the benefit of, and be binding upon, the successors and permitted assigns of each of the Parties. 
14.10    Subscriber must provide prior notice to Pani of any merger with, or sale or assignment of its entire business to another person or business entity.  Subscriber will have no right to assign this Agreement and/or the benefit of this Agreement, by operation of law or otherwise, without express prior, written permission of Pani.  Any permitted assignment, by operation of law or otherwise, will be conditioned upon Subscriber and/or the permitted assignee or successor, cooperating reasonably with Pani with respect to the transition of Subscriber’s Services.  Pani reserves the right to charge additional Fees relating to the transition of Subscriber’s Services and accounts to any permitted assignee or successor.  
14.11    Pani may assign this Agreement and/or the benefit of this Agreement in the event that Pani merges with another company or sells or assigns its entire business to another company.  
14.12    Subscriber may permit use of the Services by any Subscriber Affiliate identified in an Order Form, provided that Subscriber remains at all times fully responsible for such Subscriber Affiliate’s compliance with the terms and conditions of this Agreement, including payment of all applicable Fees.  
14.13    Nothing in this Agreement, express or implied, is intended to confer upon any person, other than the Parties hereto, any rights, benefits or remedies under or by reason of this Agreement.
14.14    This Agreement will be governed by and construed in accordance with the laws of the Province of British Columbia and the laws of Canada applicable therein, without reference to conflicts of laws provisions, and will in all respects be treated as a British Columbia contract.  Subject to Section 14.5, the Parties hereby irrevocably submit to the jurisdiction of the federal and provincial courts located in Vancouver, British Columbia.
14.15    All disputes arising out of or in connection with this Agreement, or in respect of any legal relationship associated therewith or derived therefrom, will be referred to and finally resolved by arbitration administered by the British Columbia International Commercial Arbitration Centre pursuant to its Rules.  Such arbitration will be conducted before one (1) arbitrator and the place of arbitration will be Vancouver, British Columbia, Canada.    
14.16    Notwithstanding any provision of this Agreement, the parties may seek a preliminary injunction, attachment or other judicial relief in any court of competent jurisdiction, if such an action is necessary to avoid irreparable harm, preserve the status quo or preserve and protect the subject matter of the dispute, without first complying with Section 14.15.
14.17    The International Sale of Goods Act of British Columbia, any similar legislation applicable to Pani in any jurisdiction, and the United Nations Convention on Contracts for the International Sale of Goods will not apply in any way to this Agreement or to the transactions contemplated by this Agreement or otherwise to create any rights or to impose any duties or obligations on either Party to this Agreement.  Any rights which have arisen or which might in the future arise under the International Sale of Goods Act, similar applicable legislation or under the United Nations Convention on Contracts for the International Sale of Goods are waived and released by the Parties. 
14.18    Subscriber acknowledges and agrees that the Software may include encryption software that may be subject to export, import, and/or use controls by Government Authorities (as hereinafter defined) by way of law or regulation. Subscriber agrees that the Software will not be exported, imported, used, transferred, or re-exported except in compliance with the laws and regulations of the national and/or other (sub-national and/or supranational) government authorities with authority over the country(ies) and/or territory(ies) from which the Software is being exported or to which the Software is being imported (collectively, the “Government Authority(ies)”). Without limitation, the Software will not be exported: (a) to any country on Canada's Area Control List; (b) to any country subject to UN Security Council embargo or action; (c) contrary to Canada's Export Control List Item 5505; (d) to countries subject to U.S. economic sanctions and embargoes; and (e) to persons or entities prohibited from receiving U.S. exports or U.S.-origin items. 

 

15.    INTERPRETATION
15.1    The division of this Agreement into articles and sections is for convenience of reference only and will not affect the interpretation or construction of this Agreement.
15.2    All words and personal pronouns relating thereto will be read and construed as the number and gender of the party or parties referred to in each case required and the verb will be construed as agreeing with the required word and pronoun.  A general statement, term or matter when followed by the word “including”, will not be construed as limited to the specific items or matters set forth immediately following such word or to similar items or matters, whether or not language such as “without limitation” or “but not limited to” is used with reference thereto.  
15.3    When calculating the period of time within which or following which any act is to be done or step taken pursuant to this Agreement, the date which is the reference date in calculating such period will be excluded.  If the last day of such period is a non-business day of the Party responsible for the act or step, the period in question will end on the next business day.
15.4    Any references herein to any law, by law, rule, regulation, order or act of any government, governmental body or other regulatory body will be construed as a reference thereto as amended or re-enacted from time to time or as a reference to any successor thereto.
15.5    In the event of an inconsistency between any provision contained herein and any Order Form or any policies referenced herein, the following order of precedence will prevail: the applicable Order Form, the Terms, then any policies referenced herein.
15.6    In the event of any inconsistency between this Agreement and the User Terms, the terms and conditions of this Agreement will take precedence.
15.7    All references herein to currency are to the lawful money of the United States of America unless expressly stated otherwise.