Effective Date SEPTEMBER 15, 2021.

TERMS OF SERVICE FOR USING OUR APPLICATION

Welcome to PANDA AI, Inc., where we strive to help our customers win more, work less, and be happier through our workplace information and collaboration solutions and platform, powered by our proprietary natural language processing AI (the “Services”).  These Terms of Service (this “Agreement”) govern your access to and use of our Services and, together with the Order Form and any document(s) referenced herein, are a binding agreement between you (“Customer,” “you,” or “your”) and us (“PANDA AI,” “we,” “our” or “us”).

1. Acceptance of Agreement. BY CLICKING THE “I ACCEPT” BUTTON OR BY ACCESSING OR USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND AGREE TO BE BOUND BY ITS TERMS, AND IF AN INDIVIDUAL, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT, AND IF AN ORGANIZATION, REPRESENT AND WARRANT THAT THE INDIVIDUAL ACCEPTING THIS AGREEMENT ON YOUR BEHALF IS A DULY AUTHORIZED REPRESENTATIVE OF YOUR ORGANIZATION AND HAS THE AUTHORITY TO DO SO.  IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, PLEASE CLICK THE “I DECLINE” BUTTON INSTEAD, IN WHICH CASE YOU WILL HAVE NO RIGHT TO ACCESS OR USE THE SERVICES.

2. Definitions

“Aggregated Statistics” means collected and compiled data and information related to your and the Authorized Users’ use of the Services to be used by Provider in an aggregated and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
Authorized Users” means Customer’s employees or other users who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement.
Customer Data” means all data or information, in any form or medium, that is submitted or made available to, or otherwise transmitted through, the Services by or on behalf of Customer or an Authorized User.
IP Rights” means copyrights, patents, trademarks, service marks, trade secrets, know-how, trade dress, trade names, logos, corporate names, domain names, and all other intellectual property rights.
Malicious Code” means viruses, worms, time bombs, Trojan horses, and other harmful or malicious code, files, scripts, agents or programs.
Order Form” means a PANDA AI ordering document that is entered into between Customer and PANDA AI or an online ordering form made available to Customer through the Services interface.  

3. The Services

3.1 Access Right. Subject to the terms of this Agreement and conditioned upon your and Authorized Users’ compliance with this Agreement, we grant you a limited, non-exclusive, and non-transferable right to access and use the Services during the Term solely for your internal business purposes.  Except for the limited rights expressly granted here, we reserve all rights, title, and interest in and to the Services, including all related IP Rights.

3.2 Use of the Services. You will comply with the terms of this Agreement and any applicable laws and regulations when accessing and using the Services.  You will ensure that your Authorized Users comply with the terms of this Agreement and be responsible for any acts of omissions of your Authorized Users.  You are solely responsible for the accuracy, content, quality, integrity, and legality of the Customer Data, the means by which you acquired the Customer Data or the way you choose to use the Services to store or process any Customer Data.  You will use best efforts to prevent unauthorized access to or use of the Services and notify us promptly of any such unauthorized access or use.

3.3 Customer Account. Only Authorized Users may access or use the Services.  Each Authorized User must keep its login credentials confidential and not share them with anyone else.  You may designate one or more Authorized Users as “administrators” to manage your organization’s account.  You are solely and fully responsible for your choice of administrators and any internal management and administrative decisions you make regarding your account and any Authorized User.

3.4 Use Restrictions. As a general matter, you may not and will not permit any Authorized User or others to use the Services for any purposes beyond the scope of the access right granted in this Agreement.  In particular, you will not at any time, directly or indirectly, and will not permit any Authorized User or others to: (i) sell, resell, rent, lease the Services; (ii) copy, frame, mirror, reproduce, publicly perform, or create derivative works based on, any part or content of the Services; (iii) access or use the Services or PANDA AI Confidential Information to build a competitive product or service; (iv) reverse engineer the Services; (v) use the Services to store or transmit Malicious Code, or fraudulent, libelous, obscene or otherwise unlawful or tortious material, or to store or transmit material infringing or in violation of third-party privacy or IP Rights; or (v) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein.

3.5 Beta Status of the Services. By participating in our early access program and entering into this Agreement, you acknowledge and agree that the Services (i) are offered on a beta basis that remains in a developmental state, may not function or operate correctly at all times, and may be undergoing substantial modifications and improvements throughout the Term; (ii) are intended to be used within your entity for internal business purposes only; (iii) consist in whole or in part of software running remotely on servers controlled by us, and you have no right to receive either the object code or source code version of such software; and (iv) may be subject to other limitations.  

In addition, you agree that your purchase hereunder is based on functionality and the features of the Services available at the time when you enter into this Agreement (including any Order Form), and neither contingent upon the delivery of any future functionality or features, nor dependent on any oral or written public comments made by us regarding future functionality or features.  

PANDA AI will strive to provide support practices consistent with it's posted Support and Services Practices. For any material change(s) to this Agreement, we will take reasonable steps to notify you prior to the change(s) taking effect.  If you (or any Authorized User) access or use the Services after the effective date of such change(s), that use will constitute your acceptance of the updated Support and Services Practices.  Given the beta status of the Services, we have no obligations under this Agreement to provide support, maintenance, upgrades, or modifications for the Services, or to meet certain availability standards, although we will always strive to work with you to address any questions or concerns you might have.  

2.6 Intellectual Property Ownership. As between PANDA AI and Customer, PANDA AI owns all right, title, and interest, including all IP Rights, in and to the Services, and Customer owns all right, title, and interest, including all IP Rights, in and to the Customer Data.  Subject to the terms and conditions of this Agreement, Customer (on behalf of itself and all of the Authorized Users) grants PANDA AI a non-exclusive, royalty-free, and worldwide license to access, display, reproduce, copy, process, distribute, perform, export and otherwise use the Customer Data, for the purposes of (i) providing, maintaining, and improving the Services for you, including training PANDA AI’s AI model,  (ii) detecting, preventing, investigating, mitigating, or otherwise addressing fraud, security, or technical issues; and (iii) meeting legal requirements or enforceable governmental requests, or for purposes expressly permitted by Customer.  Customer represents and warrants that it has secured all rights in and to Customer Data from its Authorized Users or any third parties, if applicable, as may be necessary to grant this license.

2.7 Right to collect Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, PANDA AI may monitor Customer’s use of the Cloud Services and collect and compile Aggregated Statistics. As between PANDA AI and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by PANDA AI. You acknowledge that PANDA AI may compile Aggregated Statistics based on Customer Data input into the Cloud Services. You agree that PANDA AI may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer or Customer’s Confidential Information.

2.8 Non-PANDA AI Platforms. Our Services allow customers to connect their other workplace productivity applications, services, accounts, or platforms (“Non-PANDA AI Platforms”) with the Services.  Some common examples of such Non-PANDA AI Platforms include email and calendar applications, cloud-based document and/or data solutions, and workspace collaboration platforms.  You have full control over which Non-PANDA AI Platforms you choose to connect with the Services, and it is your full responsibility to understand and comply with any agreements, terms, policies, and/or other requirements associated with such Non-PANDA AI Platforms.  You acknowledge and agree that by connecting such Non-PANDA AI Platform with the Services, (i) the Services will be able to access, display, search, index, aggregate, or otherwise use any Customer Data from such Non-PANDA AI Platforms; and (ii) you represent and warrant to us that the foregoing uses will not violate any of your contractual commitments or obligations with the provider of such Non-PANDA AI Platforms.  We cannot and will not be responsible for any disputes you might have with such third-party providers regarding the ownership or usage of the Customer Data, and you agree to indemnify us for any claims arising from such disputes in accordance with the terms specified in the “Indemnification” section.

2.9 Other Third-Party Products or Services. PANDA AI may use third-party products and services as part of the Services (e.g. a cloud service provider).  By using the Services, you acknowledge that we may allow third-party providers to access Customer Data as required for the operation of the Services.  We will not be responsible for any disclosure, modification, or deletion of the Customer Data resulting from any such access by third-party providers.

2.10 Suspension of Services. We may suspend your or any Authorized User’s access to the Services at any time in the event of (i) your or any Authorized User’s violation of any term of this Agreement; (ii) the presence of any security risk or threat; (iii) the suspension or termination of our access to any third-party services required to enable you to access the Services; (iv) your default on your payment obligations as described in the “Fees and Payment” section below; (v) any event out of our reasonable control that prevents us from providing the Services to you.  We will not be liable for any damages or losses (including any loss of Customer Data, opportunities, or profits) that you or any Authorized User may incur as a result of a suspension.

3. Fees and Payment. The Services are offered to our customers through subscriptions, which may be purchased through an Order Form or any other means that PANDA AI may expressly permit in writing.  You will pay all fees specified in your Order Form within thirty (30) days from the invoice date.  You agree that we may send you invoices through the Services interface or email and you will maintain current contact and billing information with us.  All fees are based on subscriptions purchased and not actual usage.  Unless otherwise provided in the Order Form, all payment obligations are non-cancellable, and fees paid are non-refundable.  

If any fees are 30 or more days overdue, we may, without limiting our other rights and remedies, accelerate your unpaid fee obligations so that all such obligations become immediately due and payable, and may, in our discretion, suspend your and your Authorized Users’ access to the Services until such amounts are paid in full.  If the applicable fees are under reasonable and good-faith dispute and you are cooperating diligently to resolve the dispute, then we may choose not to exercise the rights stated in this paragraph.

Unless otherwise stated in the Order Form, our fees do not include any taxes, including, without limitation, any sales, value-added, use, or withholding taxes, or other governmental charges.  You are responsible for paying all taxes and charges associated with your purchases under this Agreement.  If we have the legal obligation to pay or collect any taxes or charges for which you are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by you, unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority.

4. Confidentiality.

From time to time during the Term, either party may disclose or make available to the other party Confidential Information. “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.  Confidential Information of each party shall include the terms and conditions of this Agreement, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by the Disclosing Party.  Confidential Information does not include any information that (i) without breach of any obligation owed to the Disclosing Party (a) is or becomes generally known to the public, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party, or (c) is received from a third party by the Receiving Party; or (ii) was independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information.

Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care); and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors, and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.

The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

5. Feedback.

For all ideas or feedback provided by you to us about the Services, regardless of what your submission states, the following terms shall apply: you agree that (i) your ideas or feedback will automatically become the property of PANDA AI, without compensation to you, and you hereby assign and agree to assign all its right, title, and interest in and to such to PANDA AI; and (ii) we can use the ideas or feedback for any purpose and in any way without future liability to you.

6. Publicity.

We may include your Organization’s name, trademark, and logo and identify you as our customer on our website or use such information in our marketing or promotional materials.  You may send us an email to operations@panda.app to ask us to cease such use and we will comply upon receipt of such request in a timely manner.

7. Disclaimer of Warranties. THE SERVICES ARE PROVIDED BY PANDA AI “AS IS” AND ON AN “AS AVAILABLE” BASIS.  PANDA AI MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND PANDA AI SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.  WITHOUT LIMITING THE FOREGOING, PANDA AI MAKES NO WARRANTY OF ANY KIND THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.

8. Indemnification.

Customer shall indemnify, hold harmless, and, at PANDA AI’s option, defend Panda AI, and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any losses, damages, liabilities, or costs (including reasonable attorneys’ fees) resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) alleging that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party’s IP rights or other rights, and any Third-Party Claims based on Customer’s or any Authorized User’s (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by this Agreement; or (iii) use of the Services in combination with data, software, hardware, equipment, or technology not provided by PANDA AI or authorized by PANDA AI in writing.

In the event PANDA AI seeks indemnification or defense from Customer under this provision, PANDA AI shall promptly notify Customer in writing of the claim(s) brought against PANDA AI for which PANDA AI seeks indemnification or defense.  PANDA AI reserves the right, at its option and in its sole discretion, to assume full control of the defense of claims with legal counsel of PANDA AI’s choice.  Customer may not enter into any third-party agreement which would, in any manner whatsoever, affect PANDA AI’s rights, constitute an admission of fault by PANDA AI, or bind PANDA AI in any manner, without PANDA AI’s prior written consent.

9. Limitation of Liability.

IN NO EVENT WILL WE HAVE ANY LIABILITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, INCLUDING WITHOUT LIMITATION, (A) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (B) LOSS OF GOODWILL OR REPUTATION; (C) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (D) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  IN NO EVENT WILL PANDA AI’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE FEES PAID IN THE PRECEDING 12-MONTHS OF ANY CLAIM BY CUSTOMER HEREUNDER.

10. Term and Termination.

The initial term of Customer’s subscription to the Services is as specified in Customer’s Order Form (the “Initial Term”).  After the expiration of the Initial Term, this Agreement will automatically renew for successive one-month terms (each a “Renewal Term,” and together with the Initial Term, the “Term”), until (i) this Agreement is terminated earlier as provided herein; (ii) the Services become commercially available; or (iii)  either party provides to the other party written nonrenewal notice at least one (1) days prior to the expiration of the then-current Renewal Term.  

PANDA AI may terminate this Agreement at any time without cause.  Either party may terminate this Agreement for material breach by giving written notice to the other party if such party materially breaches or fails to comply with any terms or conditions of this Agreement and does not cure such breach or failure within fifteen (7) days after receiving written notice thereof.  Upon expiration or termination of this Agreement, Customer and its Authorized Users shall immediately discontinue use of the Services and delete, destroy, or return all copies of PANDA AI Confidential Information.

11. Modifications to This Agreement.

We reserve the right to make changes to this Agreement from time to time.  For any material change(s) to this Agreement, we will take reasonable steps to notify you prior to the change(s) taking effect.  If you (or any Authorized User) access or use the Services after the effective date of such change(s), that use will constitute your acceptance of the revised Agreement.

12. General Provisions.

This Agreement (a) is governed by the laws of the state of Washington, exclusive of its choice of law provisions; (b) along with the Order Form and any document(s) referenced herein, constitutes the entire agreement between the parties; and (c) is an agreement between independent contracting parties and does not create any partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.  Any notices to us must be sent electronically via email to operations@panda.app or via physical copy to our corporate headquarters address at 2101 N 34th St. Ste. 195 Seattle, WA 98103 and if by physical copy, must be delivered either in person, by certified or registered mail, return receipt requested and postage prepaid, or by recognized overnight courier service, and are deemed given upon receipt by us.  Notwithstanding the foregoing, you hereby consent to receiving electronic communications from us and agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing.  Customer may not assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without PANDA AI’s prior written consent. Notwithstanding the previous sentence,  Customer may assign its rights and obligations under this Agreement to a parent, affiliate, or subsidiary, or to a successor by way of merger, sale of all or substantially all of its assets, or otherwise, provided that assignee is not deemed to be a direct competitor of PANDA AI. Any attempted assignment in violation of the foregoing will be null and void.  In no event shall either party be liable to the other party for any failure or delay in performing its obligations under this Agreement if and to the extent such failure or delay is caused by any circumstances beyond such party’s reasonable control, including, but not limited to, acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, pandemic, denial-of-service attacks, a failure by a third-party hosting provider or utility provider, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.  No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.  If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.  The parties agree that the state or federal courts located in King County, Washington, shall have exclusive jurisdiction of, and shall be the exclusive and correct venue for, the resolution of any dispute arising out of or related to this Agreement.

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