This End User License Agreement (this “Agreement”) is between BigPanda, Inc., a Delaware corporation, with its offices at 888 Villa Street #300, Mountain View, California 94041 (“BigPanda”) and you (and the organization you represent) (“End User”). This Agreement sets forth the terms and conditions governing End User’s use of and access to the Services and is dated the date accepted by End User (the "Effective Date")
This Agreement, together with the applicable Order Forms, is the final and entire agreement of the parties regarding the subject matter of this Agreement and supersedes all prior or contemporaneous oral or written agreements, representations and negotiations, including, but not limited to, any terms contained in a purchase order. Notwithstanding anything to the contrary herein, this Agreement does not supersede a signed agreement between BigPanda and End User.
FOR VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED, THE PARTIES AGREE AS FOLLOWS: 

1.     DEFINITIONS; TERMS.  BigPanda provides subscription-based on-demand online services for IT incident management, as such services are more fully described at the BigPanda official website http://www.bigpanda.io/ (the “Services”). When used in this Agreement the following terms will have the following meanings:
1.1.       “Affiliate” means, with respect to a party, any entity which is controlled by such party, which controls such party, or which is under common control with such party, where the term “control” means the ownership, directly or indirectly, of more than 50 percent of the shares entitled to vote for the election of directors.
1.2.       "Agreement" means this End User License Agreement and any materials attached hereto or available on the BigPanda website specifically incorporated by reference herein.
1.3.       "BigPanda Technology" means all of BigPanda's proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to End User by BigPanda in providing the Services and/or by which BigPanda provides the Services.
1.4.       "BigPanda Tools" means the integration software and any other software or other tools which may be provided to End User, from time to time, by BigPanda or by the relevant BigPanda representative to implement the Services.
1.5.       "Content" means the audio and visual information, documents, software, products and services contained or made available to End User in the course of using the Services.
1.6.       "Intellectual Property Rights" means rights in unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights in the broadest meaning of the term, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
1.7.       "Order Form" means the online order placed through the AWS Marketplace and accepted by BigPanda. In the event of any conflict between the terms of this Agreement and the terms of any such Order Form, the terms of this Agreement will prevail.

2.    GRANT OF LICENSE; RESTRICTIONS
2.1.       License.  For the duration specified in the applicable Order Form, BigPanda grants End User a limited, non-exclusive, non-transferable, non-sub licensable, license to access and use the Services (and any associated online or offline documentation provided in connection with the Services), solely for End User’s own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted herein are reserved by BigPanda.
2.2.      Restrictions on Use.  With respect to the Services, BigPanda Technology and BigPanda Tools, End User will not: (i) sell, resell, transfer, assign, distribute or otherwise commercially exploit or make it available to any third party in any way; (ii) interfere with or disrupt the integrity or performance of the Services or the data contained therein, including by uploading or otherwise disseminating viruses or other malicious code; (iv) attempt to gain unauthorized access to the Services or its related systems or networks; (v) copy any ideas, features, functions or graphics of the Services or any Content other than for End User’s own internal use; (vi) reverse engineer, decompile, or disassemble the BigPanda Tools and/or BigPanda Technology, (vii) use the Services for any illegal purpose, or in violation of any local, state, national, or international law; (vii) use the Services to violate, or encourage others to violate, the rights of third parties; (ix) import or collect any End User Data or other content that is unlawful, defamatory, libelous, or invasive of privacy; or (x) perform any fraudulent activity, including impersonating any person or entity, claiming false affiliations, or accessing the Service accounts of others without permission.

3.    RESPONSIBILITIES
3.1.       Excluding breach of this Agreement by BigPanda, End User is responsible for all activity occurring under its account, including the actions of all persons who were provided with a username and password by End User or for End User, and will abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with End User’s use of the Services, including those related to data privacy, international communications and the transmission of technical or personal data. End User will: (i) notify BigPanda immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) not impersonate another BigPanda user or provide false identity information to gain access to or use the Services; (iii) suspend all user accounts for individuals who are no longer authorized to access those accounts, and (iv) generally, comply with any instructions concerning access to and/or use of the Services that BigPanda may give from time to time.
3.2.       End User will abide by all local and international laws and regulations applicable to the use of the Services.
3.3.       End User is solely responsible for End User Data (as defined below). By importing, storing, or processing End User Data, End User affirms, represents, and warrants that: 
3.3.1.It is the creator and owner of, or has the necessary licenses, rights, consents, and permissions to use and to authorize BigPanda and users of the Services to use and distribute End User Data and as necessary to exercise the licenses granted by End User in this Agreement;
3.3.2.End User Data, and the use thereof as contemplated herein, does not and will not infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right;
3.3.3.To the extent applicable, End User has a privacy policy that accurately describes its privacy practices, including, but not limited to its collection and use of personally identifiable information, its practices for storing personally identifiable information, and the circumstances in which it discloses personally identifiable information to third parties; and 
3.3.4.End User’s privacy policy allows it to provide End User Data to BigPanda and permits BigPanda to use, store, and disclose such End User Data as contemplated herein. 

4.    END USER DATA
4.1.      End User acknowledges that in order to allow BigPanda to provide the Services, End User may be required to provide BigPanda with access authorization to certain third party services, for which the Services are to be provided, and BigPanda may store and process certain data used for the Services (collectively, "End User Data"). BigPanda does not own any End User Data, information or material that End User will submit to BigPanda or that BigPanda may store in the course of using the Services. For clarity, End User Data includes data derived from End User Data, but does not include anonymous and aggregated metadata associated solely with actions of users of the Services.  By importing or processing End User Data, End User grants to BigPanda a worldwide, non-exclusive, royalty-free license to reproduce, distribute, modify, and adapt End User Data solely for the purpose of providing the Services to End User and subject to this Agreement. 
4.2.      BigPanda will not sell the End User Data to any third party. BigPanda will not sell, rent or lease any personally identifiable information included therein to third parties, without receiving End User’s prior explicit consent, except in any of the following instances:
4.2.1.To operate the Services, including storing and processing End User Data through third party hosting services;
4.2.2.If BigPanda is required by applicable law, rules or regulations to do so;
4.3.      End User will have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all End User Data, and BigPanda will not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any End User Data. End User will indemnify BigPanda and hold it harmless against any claim alleging that use of the End User Data infringes or misappropriates the rights of, or has caused harm to, any third party. End User agrees that BigPanda has no obligation to retain any End User Data provided to BigPanda, except as necessary for the provision of the Services. BigPanda is under no obligation to edit or control End User Data and may, at any time and without prior notice, remove any End User Data that violates this Agreement or applicable law, in BigPanda’s sole discretion. 
5.     INTELLECTUAL PROPERTY OWNERSHIP 
5.1.      Ownership.  BigPanda alone will own all right, title and interest, including all related Intellectual Property Rights in and to the Services, the Content and the BigPanda Technology and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by End User or any other party relating to the Services. The BigPanda name, BigPanda logo, and the product names associated with the Services are trademarks of BigPanda or third parties, and no right or license is granted to use them.
5.2.       End User Reference. End User agrees that BigPanda may use the End User name and logo on the BigPanda website solely for marketing the Services.

6.     CONFIDENTIALITY
6.1.       Definition. As used herein, "Confidential Information" means all confidential information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or written, 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. End User Confidential Information will include the End User Data; BigPanda’s Confidential Information will include the Services and the BigPanda Technology; and Confidential Information of each party will include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. 
6.2.       Exclusions. Confidential Information (other than End User Data) will not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. 
6.3.       Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party will protect the Disclosing Party's Confidential Information by using the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care), and will not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party will 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 are bound by confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. End User hereby acknowledges that the BigPanda Technology is highly confidential, and agrees that, at all times, End User: (i) will treat and maintain the BigPanda Technology as confidential, and hold all such BigPanda Technology in trust and in strict confidence, utilizing the same degree of care End User uses to protect its own confidential information, but in no event less than a reasonable degree of care; (ii) will not disclose the BigPanda Technology to any third party, whether or not for consideration; and (iii) exploit the BigPanda Technology for the benefit of anyone else, without the prior written consent of BigPanda.
6.4.       Compelled Disclosure. 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. 
6.5.       No License. Except as expressly set forth herein, no license or other rights to Confidential Information are granted or implied hereby by either party.  

7.     PRIVACY & SECURITY
7.1.      BigPanda and third parties on its behalf implement information security tools and procedures to secure the End User Data. These tools include protection such as encryption for communication and user authentication to prevent unauthorized user access or other malicious activities. In addition, BigPanda limits access to its databases, keeping a clear separation between the off-line servers where End User Data is analyzed, and the on-line, on-demand servers where processed impact analysis results are stored. While such tools and procedures reduce the risk of security breaches, they do not provide absolute security, and BigPanda cannot guarantee that the Services will be immune from any unlawful interceptions or unauthorized access.
7.2.      BigPanda stores and processes End User Data and provides the Services through a third party's hosting services in the United States. If End User is in the European Economic Area, or in any other jurisdiction that regulates the transfer of personal information outside that jurisdiction, then End User hereby grants BigPanda its explicit and unambiguous consent to transfer any personal information contained in End User’s End User Data to the United States for the purposes described in this Agreement.

8.    PAYMENT
8.1.      Fees.  End User will pay any and all applicable fees or charges (“Fees”) to its account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge are due and payable. Fees will be charged in US Dollars or such other method as specified in the Order Form.  End User is responsible for paying any applicable Fees during the applicable billing period. All pricing terms are confidential, and End User agrees not to disclose them to any third party. All payment obligations are non-cancelable, and all amounts paid are non-refundable whether or not such licenses are actively used. BigPanda's Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and End User will be responsible for payment of all such taxes, levies, or duties, excluding only taxes based solely on BigPanda's net income.
8.2.      Travel and Expenses. BigPanda will invoice End User at the end of the month for all onboarding and Customer Success related travel and subsistence expenses at cost price, and payment will be due within 30 days after the date of invoice. All payments must be made in US dollars. 
8.3.      Additional Orders.  End User may add licenses by executing additional written Order Forms and paying the additional license fees. Except as may be otherwise specifically agreed on in the additional Order Forms, added licenses will be subject to the following: (i) added licenses will be coterminous with the then preexisting billing period with respect to then existing licenses; (ii) the license fee for the added licenses will be the then current, generally applicable license fee; and (iii) licenses added in the middle of a billing period will be charged a pro rata fee for that billing period.
8.4.       Invoicing and Payment.  End User agrees to provide BigPanda with complete and accurate billing and contact information as will be requested by BigPanda. End User agrees to update this information within 30 days of any change to it. If the contact information End User has provided is false or fraudulent, BigPanda reserves the right to terminate End User’s access to the Services in addition to any other legal remedies. BigPanda may charge and collect for use of the Services in accordance with its then in effect billing practices and procedures. If End User believes its bill is incorrect, it must contact BigPanda in writing within 7 days after receiving the invoice or within 30 days of the invoice date, whichever is earlier, regarding the invoice containing the amount in question to be eligible to receive an adjustment or credit. In any event, End User must pay the undisputed amount based on the payment terms that were agreed on with BigPanda. If End User’s payment method fails or its accounts are past due, (a) End User agrees to pay all amounts due upon demand by BigPanda, (b) BigPanda may suspend End User’s access to the Services, and/or (c) End User agrees to pay a late fee of 1.5% per month, or the maximum charge permitted by law, whichever is less. BigPanda will not exercise its rights under the preceding sentence with respect to those charges that are under reasonable and good faith dispute and for which End User is cooperating diligently to resolve the dispute.

9.     TERM AND TERMINATION
9.1.      Term.  This Agreement commences on the Effective Date and will remain in effect for such term as set forth in the applicable Order Form or until all subscriptions granted in accordance with this Agreement or an Order Form have expired or been terminated. The initial term of this Agreement will commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein (“Initial Term”).   Except as otherwise specified in the applicable Order Form, all subscriptions will automatically renew for additional periods equal to the expiring subscription term unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term (the “Renewal Term”). The per-unit pricing during any such Renewal Term will be the same as that during the prior term unless BigPanda has given End User written notice of a pricing increase at least 30 days before the end of such prior term, in which case the pricing increase will be effective upon Renewal Term and thereafter.  Any such pricing increase will not exceed 7 percent of the pricing for the relevant Services in the immediately prior subscription term, unless the pricing in such prior term was designated in the relevant Order Form as promotional or one-time. 
9.2.      Termination for Cause.  A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Upon any termination for cause by End User, End User will have no obligation to pay for any Fees covering the remainder of the term of all subscriptions after the effective date of termination.  Any breach of End User’s payment obligations, unauthorized use of the Services or other failure by End User to comply with the terms of this Agreement will be deemed a material breach of this Agreement and will entitle BigPanda, without derogating from any other remedies available to it, to immediately suspend or terminate this Agreement or any Order Form with no liability or refund to End User, and End User will be required to pay all unpaid Fees for the remainder of the term of the Order Form after the effective date of termination. In no event will any termination relieve End User of the obligation to pay any Fees payable to BigPanda for the period prior to the effective date of termination. Notwithstanding the foregoing, BigPanda reserves the right to immediately suspend or terminate End User’s use of the Services or remove End User Data or End User Applications from the Services, without notice, in instances where such continued use would violate applicable law or have a material adverse effect on BigPanda.   Termination of this Agreement or an Order Form will be without prejudice to the survival of provisions in this Agreement which by their nature survive termination.
9.3.      Effect of Termination.  Upon termination, all End User’s access to the Services will be disabled and all End User Data will be deleted.  Once deleted, this information cannot be recovered. BigPanda will have no obligation to maintain or provide any End User Data and may, unless legally prohibited, delete all End User Data in its systems or otherwise in its possession or under its control.
9.4.      Modification of the Services. BigPanda reserves the right to make non-material modifications to the Services at any time without notice to End User, provided that such changes do not materially reduce the functionality of the Services. 

10.   DISCLAIMER OF WARRANTIES
10.1.    THE SERVICES, THE BIGPANDA TOOLS AND THE CONTENT ARE PROVIDED TO END USER STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS IN RELATION TO THE SERVICES, THE BIGPANDA TOOLS OR THE CONTENT, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY BIGPANDA (INCLUDING ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, SUCCESSORS OR ASSIGNEES) AND ITS LICENSORS. WITHOUT DEROGATING FROM THE AFORESAID, BIGPANDA AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES, THE BIGPANDA TOOLS OR ANY CONTENT. BIGPANDA (INCLUDING ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, SUCCESSORS OR ASSIGNEES) AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICES OR THE BIGPANDA TOOLS WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICES AND THE BIGPANDA TOOLS AND/OR THEIR QUALITY WILL MEET END USER’S REQUIREMENTS OR EXPECTATIONS, (C) ANY CONTENT WILL BE ACCURATE OR RELIABLE, (D) ERRORS OR DEFECTS WILL BE CORRECTED, OR (E) THE SERVICES, THE BIGPANDA TOOLS OR THE SERVER(S) THAT MAKE THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.  END USER ACKNOWLEDGES THAT THE SERVICES MAY INCLUDE MONITORING THE FUNCTIONALITY OF THIRD PARTY APPLICATIONS OR PRODUCTS. END USER AGREES THAT BIGPANDA WILL NOT BE RESPONSIBLE FOR THE AVAILABILITY OR ACTS OR OMISSIONS OF ANY THIRD PARTY, INCLUDING ANY THIRD-PARTY APPLICATION OR PRODUCT, AND BIGPANDA HEREBY DISCLAIMS ANY AND ALL LIABILITY IN CONNECTION WITH SUCH THIRD PARTIES.
10.2.     Use Disclaimer. BigPanda will have no liability for any claims, losses, or damage caused by errors or omissions in any information provided to BigPanda by End User in connection with the Services or any actions taken by BigPanda at End User’s direction. BigPanda will have no liability for any claims, losses or damages arising out of or in connection with End User’s or any user’s use of any material, information or results available through any third-party products, services, software or web sites that are accessed from within the Services. The Services may also contain links to third-party websites. Such linked websites are not under BigPanda’s control, and BigPanda is not responsible for their content.  
10.3.     End User Data Disclaimer. Except as otherwise set forth herein, BigPanda expressly disclaims any and all liability in connection with End User Data.  BigPanda is under no obligation to edit or control End User Data that End User imports to or makes available through the Services. BigPanda reserves the right to immediately suspend End User’s use of the Services or, at any time, to remove any End User Data, with concurrent notice (and provided that BigPanda will endeavor to provide prior notice when possible or permitted), in instances where failure to immediately suspend such access or remove such End User Data would violate applicable law, or cause a material and incurable harm to the rights of a third party or BigPanda. 
10.4.     No Sensitive Use. End User acknowledges that the Services are not designed, intended, or authorized to process sensitive information or data, including, but not limited to, protected health information as defined under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), data that requires compliance with PCI DSS security standards, or other sensitive data of End User, a user, or a third party (collectively “Sensitive Information”).  End User will not use the Services for such purposes or under such circumstances or to process or store Sensitive Information.  BIGPANDA EXPRESSLY DISCLAIMS ANY LIABILITY IN CONNECTION WITH ITS ACCESS TO, STORAGE OF, OR PROCESSING OF ANY SENSITIVE INFORMATION.  End User will indemnify BigPanda for any claims arising from End User’s breach of this Section 9.4.
10.5.     SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES IN CERTAIN CIRCUMSTANCES.  THEREFORE, SOME OF THE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY.

11.   INDEMNITY
11.1.    Mutual Indemnification. Each party (the “Indemnifying Party”) will defend, indemnify and hold harmless the other party, including Affiliates and each of their respective officers, directors, shareholders, employees, representatives, agents, successors and assigns (the “Indemnified Party”) from and against any loss, damage or costs (including reasonable attorneys' fees) incurred in connection with claims, demands, suits, or proceedings ("Claims") made or brought against the Indemnified Party by a third party to the extent arising out of (a) the Indemnifying Party's gross negligence or willful misconduct in performing any of its obligations under this Agreement, or (b) a material breach by the Indemnifying  Party of any of its representations, warranties, covenants or agreements under this Agreement. 
11.2.    Indemnification by BigPanda. BigPanda will indemnify End User against Claims made or brought against End User by a third party alleging that the use of the Services as contemplated hereunder infringes the patent, copyright, trade secret or intellectual property or proprietary rights of such third party. If a court of competent jurisdiction or BigPanda reasonably determines that any such third-party infringement Claim prevails or is likely to prevail, BigPanda may, at BigPanda’s sole discretion and expense: (i) procure for End User the right to continue using the Services under the terms of this Agreement; (ii) replace or modify the Services to be non-infringing without material decrease in functionality; or (iii) if the foregoing options are not reasonably practicable, terminate the license for the infringing Services.
11.3.    Conditions for Indemnification. As a condition to indemnification as set forth in Section 10.1 and Section 10.2, the Indemnified Party will: (a) provide the Indemnifying Party with written notice of the Claim; (b) give the Indemnifying Party control of the defense and settlement of the Claim (provided that the Indemnifying Party may not settle any Claim unless it unconditionally releases the Indemnified Party of all liability); and (c) provides to the Indemnifying Party, at the Indemnifying Party’s cost, all reasonable assistance. 
12.   LIMITATION OF LIABILITY
12.1.    IN NO EVENT WILL BIGPANDA BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, EVEN IF BIGPANDA HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12.2.    IN NO EVENT WILL BIGPANDA'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY END USER FOR ACCESS TO AND USE OF THE SERVICES DURING THE PRECEDING 12 MONTH PERIOD, PROVIDED HOWEVER THAT WITH RESPECT TO BIGPANDA’S OBLIGATIONS UNDER SECTION 10, BIGPANDA’S LIABILITY WILL BE UNLIMITED.
12.3.    Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to End User.

13.   NOTICE
BigPanda may give End User notice by means of a general notice on the Services, electronic mail to End User’s e-mail address on record in BigPanda's account information, or by written communication sent by first class mail or pre-paid post to End User’s address on record in BigPanda's account information. Such notice will be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). End User may give notice to BigPanda (such notice will be deemed given when received by BigPanda) at any time via BigPanda's contact details as appear at the BigPanda official website, addressed to the attention of BigPanda Legal, with a copy sent to legal@bigpanda.io.

14.   MISCELLANEOUS
14.1.    Governing Law; Arbitration.  This Agreement will be exclusively governed by the laws of the State of California, without regard to conflict of law principles.  Any controversy or claim arising out of or relating to this Agreement, its enforcement, arbitrability or interpretation will be submitted to final and binding arbitration, to be held in Santa Clara County, California, before a single arbitrator who will be a retired judge, in accordance with California Code of Civil Procedure §§ 1280 et seq.  The arbitrator will be selected by mutual agreement of the parties or, if the parties cannot agree, then by striking from a list of arbitrators supplied by the American Arbitration Association. The arbitration will be a confidential proceeding, closed to the general public. The arbitrator will issue a written opinion stating the essential findings and conclusions upon which the arbitrator’s award is based.  The parties will share equally in payment of the arbitrator’s fees and arbitration expenses and any other costs unique to the arbitration hearing (recognizing that each side bears its own deposition, witness, expert and attorneys’ fees and other expenses to the same extent as if the matter were being heard in court). 
14.2.    No Class Actions.  END USER AND BIGPANDA AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN END USER’S OR BIGPANDA’S INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING 
14.3.    Entire Agreement.  No text or information set forth on any other purchase order, preprinted form or document will add to or vary the terms and conditions of this Agreement. This Agreement, together with any exhibits attached hereto, comprises the entire Agreement between the parties and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.
14.4.     Waiver and Amendment.  No waiver, amendment, or modification of any provision of this Agreement will be effective unless in writing and signed by the party against whom the waiver, amendment, or modification is sought to be enforced.  No failure or delay by either party in exercising any right, power, or remedy under this Agreement will operate as a waiver of any other right, power, or remedy. No waiver of any term, condition, or default of this Agreement will be construed as a waiver of any other term, condition, or default.
14.5.    Severability.  If any provision of this Agreement is held by a court or arbitration panel of competent jurisdiction to be invalid or unenforceable, then such provision will be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision, with all other provisions remaining in full force and effect. 
14.6.    Relationship of the Parties.  No joint venture, partnership, employment, or agency relationship exists between the parties as a result of this Agreement or use of the Services. Neither party will hold itself out contrary to the terms of this Section 13.6.  Neither party will be liable to third parties for the representations, acts, or omissions of the other party to the terms of this Agreement.
14.7.    Feedback.  If End User submits suggestions, ideas, comments, or questions (“Feedback”), End User grants BigPanda and its Affiliates a worldwide, non-exclusive, royalty-free, perpetual, and irrevocable right to use (and full right to sublicense), reproduce, modify, adapt, publish, translate, create derivative works from, distribute, transmit, and display such Feedback in any form.
14.8.    Assignment.  This Agreement is binding upon and inures to the benefit of the successors and assigns of the parties, provided that there may be no assignment or transfer of rights or obligations under this Agreement by either party without the prior consent of the other party.  Notwithstanding the foregoing, either party may assign its rights and obligations under this Agreement to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. 
14.9.     Headings. Use of paragraph headers in the Agreement is for convenience only and will not have any impact on the interpretation of particular provisions.
14.10. No Third-Party Rights.  This Agreement is not for the benefit of any third party and will not be deemed to grant any right or remedy to any third party, whether or not referred to in this Agreement.
14.11. Survival.  The representations and warranties of the parties contained in this Agreement, the provisions of this Agreement respecting confidentiality and indemnification, and any provision which, by its nature or express terms should survive, will survive the end of the term of this Agreement.
14.12. Force Majeure.  Neither party will be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder  on account of events beyond the reasonable control of such party, which may include without limitation denial-of-service attacks, strikes (except by its own employees), shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages (each a “Force Majeure Event”).  Upon the occurrence of a Force Majeure Event, the non-performing party will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.
14.13. Counterparts.  This Agreement may be executed in two or more counterparts, each of which will be deemed an original and all of which taken together will be but a single instrument.

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SCHEDULE A
AVAILABILITY AND SLA

AVAILABILITY

BigPanda will use commercially reasonable efforts to (a) provide bandwidth sufficient for Customer’s use of the Services provided hereunder and in an applicable Order Form and (b) operate and manage the Services with a 99.5 percent uptime goal (the “Availability SLA”), excluding situations identified as “Exclusions” below.  For purposes of the Availability SLA, the BigPanda network extends to, includes and terminates at the data center located router that provides the outside interface of each of BigPanda’s WAN connections to its backbone providers (the “BigPanda Network”).

The Availability SLA will be calculated monthly as a percentage using the following formula: 
* The total number of Available Hours for the calendar quarter converted into minutes minus
* The total number of minutes of Unavailability and the result divided by
* The total number of Available Hours for the quarter converted into minutes.  

DEFINITIONS: 

1. “Available Hours” means, in a calendar quarter, the total number of hours in the quarter (24 hours per day, 7 days per week, 13 weeks in the quarter) minus any time during such quarter for any Exclusions (as defined below).

2. “Exclusions” means any outage that results from any of the following:
a. Any Maintenance performed by BigPanda during BigPanda’s standard Maintenance windows.  BigPanda will notify Customer within 48 hours of any standard Maintenance and within 24 hours for other non-standard emergency Maintenance (collectively referred to herein as “Scheduled Maintenance”).
b. Customer’s information content or application programming, or the acts or omissions of Customer or its agents, including, without limitation, the following:
1. Customer’s use of any programs not supplied by BigPanda;
2. Customer’s failure to provide BigPanda with reasonable advance prior notice of any pending unusual large deployments of new nodes (i.e., adding over 10 percent total nodes in less than 24 hours);
3. Customer’s implementation of any significant configuration changes, including changes that lead to a greater than 30 percent change in a one week period or greater than 50 percent change in a one-month period in the average number of nodes and/or alerts reporting in to the system;
4. Any misconfiguration by Customer (as determined in BigPanda’s sole discretion), including configuration errors or unintended usage of the Services; and
5. Customer’s failure to upgrade the BigPanda Service agents to keep the versions within six months of the controller version.
c. Force majeure or other circumstances beyond BigPanda’s reasonable control that could not be avoided by its exercise of due care.
d. Failures of the Internet backbone itself and the network by which Customer connects to the Internet backbone or any other network unavailability outside of the BigPanda Network.
e. Any window of time when Customer agrees that Services availability/unavailability will not be monitored or counted.
f. Any problems resulting from Customer combining or merging the Services with any hardware or software not supplied by BigPanda or not identified by BigPanda in the Documentation as being compatible with the Services.
g. Customer’s or any third party’s use of the Services in an unauthorized or unlawful manner.

3. “Unavailability” will be defined as any period of time in excess of 300 seconds during which the Services are unreachable via the user interface, for reasons not attributable to an Exclusion.  

Availability Credits

In the event that BigPanda fails to meet the Availability SLA in three calendar months, BigPanda will credit Customer an amount equal to the prorated fees for the Services (“Availability Credit”) as follows:  

Availability (Actual)
Pro-Rated Services Fee
At least 97.0% but less than 99.5%  
5% of Fees for the applicable calendar quarter
At least 95% but less than 97%  
10% of Fees for the applicable calendar quarter
Less than 95%  
20% of Fees for the applicable calendar quarter

To receive an Availability Credit Customer must provide written notice to BigPanda of the purported failure within five days following the end of the applicable period, or Customer’s right to receive an Availability Credit with respect to the applicable Unavailability will be waived.  Notwithstanding the foregoing, in no event will aggregate Availability Credits made to Customer hereunder in any 12-month Term exceed one-half of Customer’s total fees for the Services in such Term.  Availability Credits will be issued as a credit against any Fees owed by Customer for the following applicable calendar quarter, or, if Customer is not renewing the term for an additional calendar quarter, BigPanda will pay Customer the amount of the applicable Availability Credit within 30 days after the end of the calendar quarter in which such credit accrued. Notwithstanding anything to the contrary in the Agreement, the forgoing Availability Credits will be Customer’s sole and exclusive remedies arising from or relating to any failure of BigPanda to meet the Availability SLA.

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SCHEDULE B
STANDARD SUPPORT AGREEMENT

BigPanda will provide support via phone, e-mail and online resources 24x7x365 to assist Customer in using the Services. This includes identifying, reproducing and verifying problems in order to provide work-arounds and/or other available solutions. Customer agrees to make reasonable efforts to resolve technical support problems before contacting BigPanda and to communicate using the appropriate channel based on the ticket priority.  

BigPanda prioritizes support tickets on the following basis:
Priority
Description
Sample Issues
1
Critical production issue affecting all users, including system unavailability and data integrity issues with no workaround available
•  Service is down or unavailable
•  A critical part of the Software as a Service infrastructure is unavailable or inaccessible, resulting in total disruption of work or critical business impact
•  Service crashes or hangs indefinitely causing unacceptable or indefinite delays for resources or response
•  A critical documented feature is not available
2
Major functionality is impacted or significant performance degradation is experienced. Issue is persistent and affects many users or major functionality. No reasonable workaround available
•  Service is operational but highly degraded performance to the point of major impact on usage
•  Important features of the Software as a Service offering are unavailable with no acceptable workaround; however, operations can continue in a restricted fashion
•  Access to a 3rd-party application deemed critical is impacted
3
System bug affecting some but not all users. Short-term workaround is available, but not scalable. 

•  Service is operational but partially degraded for some or all customers, and an acceptable workaround or solution exists. 
•  Problem with non-critical feature or functionality
•  Access to a 3rd-party application deemed non-critical is impacted
4
Inquiry regarding a routine technical issue; information requested on application capabilities, navigation, installation or configuration; bug affecting a small number of users. Acceptable workaround available. 
•  Minor problem not impacting service functionality. 
•  Missing or erroneous documentation.  
•  Minor problem that does not affect delivery of service. 


Response Time
Priority
First Response
Communication Channel
Resolution Goal
1
4 Hours
Phone / email
BigPanda and Customer will commit the necessary resources around the clock for problem resolution to obtain a workaround or reduce the severity of the error. Target resolution / workaround – 2 business days
2
8 Hours
Phone / email
BigPanda and Customer will use commercially reasonable efforts during normal business hours for problem resolution, to obtain workaround or reduce the severity of the error. Target resolution / workaround – 7 business days
3
3 Business Days
Email / web
To Be Determined with Proposed Course of Action
4
5 Business Days
Email / web
To Be Determined with Proposed Course of Action