The following terms of service (collectively “Terms” or “Agreement”) govern the use of the AlertMagic reporting services (the “Service” or “Services”) offered by Panoramic Data Limited, registered with Companies House with registration number 06982102 or its subcontractors (“PDL”, “we”, “our”, “us” or “Company”).
By using the Services or by clicking on the “I agree” button if any, you consent to be legally bound by the Terms. Furthermore, the represent that you both a) bind the organisation, company or other legal entity represented by the email address used to register your system account (the “Customer”) to the Terms and b) have the authority to do so. If you do not have such authority, you must not accept the Terms and may not use the Services.
We offer subscription-based Services. By using the Services, you have a limited, non-exclusive, non-transferable and terminable licence to access and use the Services solely for your business operations during the period between a) you first agreeing to these Terms until b) termination (the “Subscription Period”). You are prohibited from sub-licensing use of the Services to third parties. Any person from your email domain that registers a system account shall be considered a “User” for the purposes of these Terms.
There are two types of Subscription – “Paid”, whereby you pay an annual or monthly consideration (“Fee”) and “Unpaid” whereby you receive a subset of services for no consideration.
For Paid subscriptions, during your Subscription Period we shall use commercially reasonable efforts to provide Users with:
- access to the Service 24 hours a day, 7 days a week, except for:
- “Maintenance Windows” where we take the service down for systems maintenance, which may be unlimited in number and duration.
- circumstances beyond our reasonable control, including without limitation acts of government, flood fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems, Internet Service Provider failures, outages or delays (collectively “Extraordinary Circumstances”)
- best-efforts support (“Support”) via our “Feedback” subsystem during UK office hours;
For Unpaid subscriptions, we are under no obligation to provide either the Service or Support and may terminate the Service and/or Support at any time and without prior notification.
Your use of the Services and Support is expressly only licensed for the Subscription Period and while you remain a current customer in good standing. You acknowledge and agree that you will not have access to information or data relating to your use of the Services upon expiration or termination of the Subscription Period.
Work outside of the Services provided by PDL personnel on a time and materials or fixed price basis for an identified project or scope of work (collectively “Professional Services”) are available for an additional “Professional Services Fee”. Professional Services fee, coverage and terms information are available from PDL and will be included in an order upon request.
3. Subscription fees, billing and renewal
A. Paid Subscription.
By subscribing to the Services, you expressly agree to pay subscription fees corresponding to your subscription plan, plus any applicable taxes and duties, if any. During any Term that you remain in good standing, we will, unless either party gives the other written notice of non-renewal at least 30 days before the end of the Initial Term or any Renewal Term, automatically renew for additional periods equal to the expiring Term (each as defined below).
- Your Subscription. Fees are billed as of the Service commencement date for the entire initial subscription period (at least twelve months as set forth on the Order Form for the Services (the “Initial Term”)) of the Agreement and for each additional renewal period of the same length (a “Renewal Term”), for the initial minimum commitment specified in the applicable Order Form, net of any contractual discount (the “Minimum Commitment”). The period of your use of the Services during the Initial Term and each Renewal Term under this Agreement is referred to as the “Term”.
- Any increase in the actual usage above the derived daily Minimum Commitment paid for during the Term (“Overages”) will be billed to you by PDL for each month of service, upon the end of the applicable month, via invoice, which shall be due and payable in accordance with PDL’s standard terms.
B. Usage Fees.
The Service can produce:
- “Configuration” defined configuration of the system via the Service User Interface.
- “Data Retrieval” defined as collection of alerts and other data via your Alert Management Systems API and other sources.
- “Data Storage” defined storage of data retrieved via Data Retrieval.
- “UI Data Access” defined access to Data Storage via the Service User Interface.
- “API Data Access” defined access to Data Storage via the Service Application Programmable Interface.
Your usage fees shall be determined by the number of “Devices” in Data Storage, measured on a calendar monthly basis.
Addition “Premium Features” may be available, in some cases for an additional fee, and will be included in the invoice if ordered. The pricing during any automatic Renewal Term will be the same as the pricing during the immediately prior Term unless we have given you written notice of a pricing increase at least 30 days before the end of that prior Term, in which case the pricing increase will be effective upon renewal and thereafter.
C. Payment Methods.
During the registration process, at our discretion, we may offer you the option to use a business charge card or bank transfer for directly charging your subscription fees. If you do choose a business charge card or bank transfer, you hereby authorise us to automatically debit your designated charge card or bank account for the subscription fees until you cancel your subscription, and we reserve the right to delay or suspend access to the Service unless these accounts are designated and maintained. Subscription fees are fully earned upon payment and except as otherwise specified herein, the payments are non-refundable and there are no refunds or credits for partial subscription periods. If you would like to change your payment method or details, such as your credit card validity or expiration date, you may access and edit your account information through our application. PDL uses a third-party intermediary to manage credit card processing and this intermediary is not permitted to store, retain nor use your billing information except to process your credit card information for the Service.
D. When Payments are Due.
All payments shall be due and payable upon receipt of billing notice or invoice (the “due date”) unless otherwise agreed in writing. You are responsible for paying any taxes (including without limitation any sales, use or withholding taxes now or hereafter enacted), and any duties, excises or tariffs (together “duties”), that are applicable to receipt of the Service provided that you shall not be responsible for any taxes based on PDL’s income. All payments hereunder shall be made without deduction for taxes or duties of any kind or nature. However, if PDL determines in its sole judgment that we are legally obligated to add taxes to your service fees, PDL will include such taxes in your Service Agreement or invoices and the full amount inclusive of such taxes will be due and paid. Late payments will be subject to late fees at the rate of five percent (5%) per month, or, if lower, the maximum rate allowed by law. PDL’s obligations under this Agreement are conditioned upon your timely payment. If you fail to pay fees within thirty (30) days following the payment due date, PDL has the right to suspend performance of the Service and seek all remedies available, and you agree to reimburse our reasonable expenses, including attorneys’ and other fees incurred in collecting amounts due. Payments received after default shall be applied against late fees, interest, expenses, and principal as we determine in its sole discretion. The Service will be reinstated at our discretion after all current and overdue amounts and accumulated late fees and expenses are paid.
E. Free Trials.
From initial account creation for a period of 30 days, you may use the system without charge, during which time you may cancel your account at any time. If you do not cancel your account within 30 days, you will be charged the subscription fees for the applicable subscription plan. If you cancel your account within 30 days, you will not be charged.
4. Term and termination
This Agreement is in force from the earlier of your electronic acceptance of these terms or use of the Services or Software and subject to any earlier termination permitted in this Agreement, will remain in force for the duration of your usage of the Services through any trial and subscription period. Except where your early termination is pursuant to PDL’s uncured material breach (pursuant to subsection (i) below) (in which case we will promptly refund to you the prepaid fees (if any) for that portion of the terminated period for which Services were not provided), early termination of a subscription or ceasing your use of the Services will not result in a refund of any prepaid fees. Either party may terminate this Agreement during the Term by written notice: (i) if the other party breaches any material term or condition of this Agreement and, assuming such default is capable of cure, fails to cure such default within thirty (30) days after written notice specifying the default (except in the case of failure to pay fees, which must be cured within fifteen (15) days after any late notice), (ii) if the other party becomes insolvent or admits in writing its inability to pay its debts as they mature or makes an assignment for the benefit of creditors; or (iii) if a petition under the United Kingdom Insolvency Act 1986, as it now exists or as it may be amended, or any similar law of any other jurisdiction, is filed concerning the other party. Additionally, PDL has the right to suspend your password, account or use of the Service or PDL Technology and this Agreement immediately upon written notice its sole discretion upon receiving information we believe is credible regarding the unauthorised use or disclosure of the PDL Technology, or the breach of any part of Sections 5, 6 or 7 hereof. Professional Services are separately ordered from the Service. A breach by a party of its obligations with respect to Professional Services shall not by itself constitute a breach by that party of its obligations with respect to the Service even if the services are enumerated in the same Order Form.
5. Our software
A. The Services are enabled by and utilise a hosted software application (“AlertMagic”). We shall host the AlertMagic Software and may update the functionality and user interface of the AlertMagic Software from time to time in our sole discretion as part of our ongoing mission to improve the Services and our users’ use of the Services. You must have access to the AlertMagic Software in order to use the Services.
B. You agree that the rights granted to you are provided on the condition that you will not (and will not allow, give permission to or enable any third party, including without limitation any customer or Affiliate, to) copy, create a Derivative Work of, reverse engineer, reverse assemble, disassemble, or decompile the Software or any part thereof or otherwise attempt to discover any source code, modify the Software in any manner or form, or use unauthorised modified versions of the Software, including (without limitation) for the purpose of building a similar or competitive product or service or for the purpose of obtaining unauthorised access to the Services. “Derivative Work” for this agreement means any modification of or extension to any software, process, algorithm, trade secret, work of authorship, invention, or to any other intellectual property right therein or thereto. You further acknowledge and agree that any access to the Services you choose to provide to your Affiliates or customers is subject to your having previously entered a written End User License Agreement with them consistent with the Minimum Terms in Exhibit A.
C. License. Subject to your compliance with the terms of this Agreement, we hereby grant to you
a limited, non-exclusive, royalty-free (apart from the fees paid to PDL for the Services), nontransferable license to download, install and use the AlertMagic Software (in object code form) onto your network for the sole purposes of (i) using the Service for your internal business purposes, and (ii) provided you have previously entered a written End User License Agreement with them consistent with the Minimum Terms in Exhibit A, providing access to the Services to your Affiliates and customers for their internal business purposes and not for any further resale or distribution. The Software is not sold but licensed hereunder.
A. You acknowledge and agree that the AlertMagic Software, including the specific design and structure of individual programs, components and aspects thereof, constitute the proprietary trade secrets and copyrighted material of PDL, and that PDL owns all rights, title and interest in and to the Services, the Software and all technology, information, trade secrets, patent rights, copyrights, know-how and documentation associated therewith as provided or otherwise made available by PDL and used in the performance of the Services, including all intellectual property rights and Derivative Works therein, on a worldwide basis (collectively, the “PDL Technology”). The license granted to you is limited by these Terms and does not convey any other rights in the PDL Technology, express or implied, nor does it grant any ownership in the PDL Technology or any intellectual property rights therein or thereto. Any rights not expressly granted herein are reserved by PDL.
B. You agree that if you make any customisations or customised implementations of the Software
or PDL Technology that do not qualify as Derivative Works (“Implementations”), such
Implementations are hereby licensed to us on a non-confidential, nonexclusive, irrevocable, worldwide, royalty-free, sub-licensable basis to perform services, use, distribute, publish, display, copy, sell, have sold, make, have made, create Derivative Works of, import, export, and license the Implementations and products and services utilising or incorporating the Implementations, and to otherwise commercially exploit the same. Notwithstanding the foregoing, the Implementations shall not include Personal Data or any of your Confidential Information (each as defined in Section 7 below).
C. You agree not to remove any copyright or proprietary legends in the PDL Technology, and to implement reasonable security measures to protect our proprietary rights therein from unauthorised use or disclosure. Certain marks, words and logos displayed on the Services, which may or may not be designated by a “™” “®” “SM” or other similar designation, constitute trademarks, trade names, or service marks belonging to us or our licensors. Except as necessary for you to make use of the Services in accordance with the license rights herein, you are not authorised to use any such marks. Ownership of all such marks and the goodwill associated therewith remains with us or our respective licensors.
A. The parties agree that during the course of performance under these Terms, each party may
disclose to the other party certain technical and/or non-technical information, which (i) is disclosed in a tangible or visual form and clearly labelled as “Confidential”; (ii) is disclosed in an oral, non-tangible or visual form, identified at the time of disclosure as Confidential and confirmed in writing within thirty (30) days; or (iii) is identified and treated as confidential by disclosing party and given the circumstances of disclosure, and/or the nature of the information, the recipient knew or should reasonably have known the information was confidential (collectively, the “Confidential Information”). For purposes of clarification and in addition to the Confidential Information addressed in the previous sentence, PDL Technology shall be deemed our Confidential Information and Personal Data shall be deemed your Confidential Information. “Personal Data” means nonpublic, personally identifiable information of or concerning any living individual among the consumers, employees, clients and customers of Customer, its parent, subsidiaries, affiliates and agents. Confidential Information does not include information, technical data or know-how which (a) is in the possession of the receiving party at the time of disclosure as shown by the receiving party’s files and records immediately prior to the time of disclosure; or (b) prior or after the time of disclosure becomes part of the public knowledge or literature, not as a result of any inaction or action of the receiving party, or (c) is approved for release by the disclosing party, or (d) is independently developed by the receiving party without reference to or use of any Confidential Information of the disclosing party.
B. Each party agrees not to use the Confidential Information disclosed to it by the other party for
any purpose except as necessary to perform its obligations under these Terms. Neither party will disclose the Confidential Information of the other party to third parties or to the first party’s employees except employees and service providers who are required to have the information in order to carry out such parties obligations hereunder who have agreed in writing, as a condition of employment, engagement or otherwise (or who are otherwise bound by fiduciary duty or rules of professional conduct), to protect the Confidential Information with terms no less stringent than are imposed by this Section. Notwithstanding the above, PDL may use aggregate information to measure general Service usage patterns and characteristics of its user base (the “Aggregated Information”), and may include such Aggregated Information in promotional materials or reports to third parties; provided that PDL shall ensure that all Aggregated Information is anonymised, de-identified, modified and rendered in such a manner so as not to not identify Customer or its suppliers, customers, contractors, agents, affiliates, or subsidiaries. This Aggregated Information will not reference Personal Data, names, phone numbers, email addresses, or other personally identifiable information, and shall not be traceable to a specific party. Each party agrees that it will use the same standard of care that it uses in protecting its own Confidential Information, but in no case less than reasonable care. Each party agrees to promptly notify the other in writing of any misuse or misappropriation of Confidential Information of the other party that may come to its attention.
C. The confidentiality and non-use obligations of each receiving party under this Agreement will survive expiration or termination of this Agreement for a period of five (5) years; except that such obligations shall survive indefinitely with respect to each disclosing party’s software and technology-based trade secrets so long as they remain eligible for trade secret under prevailing law (without regard to any breach of the receiving party). In the event of any expiration or termination of these Terms, or upon request by the disclosing party, the receiving party shall cease all use of the other party’s Confidential Information and return to the disclosing party all copies of the disclosing party’s Confidential Information in the receiving party’s possession or control, or destroy the same and certify as to its destruction. Except for the Software and any portion thereof, the receiving party will not be required to return or immediately destroy an archive copy of the disclosing party’s Confidential Information made for backup purposes in the ordinary course; provided that such archive copy will be subject to the ongoing obligations of confidentiality and non-use contained herein and shall be destroyed upon the normal expiration of backup files.
D. The parties acknowledge and agree that although the incidental capturing of nominal
Personal Data in connection with the Service may occur (for example, credentials information and in log files with transactional monitoring, and names and contact information of employees of each party as needed to conduct the Services and business relationship), the purpose and focus of the Service is on IT infrastructure performance monitoring and not to function as a receptacle to store, manipulate or retrieve Personal Data. Therefore, without limiting its other obligations under this Agreement, and subject to the foregoing caveats, you agree that (i) you shall not provide Personal Data to PDL; (ii) you will configure the AlertMagic Software so that it will be used only to collect information from devices and applications using methodology which will not expose or divulge Personal Data; (iii) you will not send any logs to PDL that contain Personal Data; (iv) you will isolate and secure the AlertMagic Software on your systems and network to prevent unauthorised access, use, disclosure and loss using at a minimum industry standard security practices and technologies and as otherwise required by applicable laws; and (v) except for the incidental information referenced above or otherwise necessary to operate the Services, PDL will not access or collect any Personal Data from you.
8. Representation and warranties
Each party hereby represents and warrants to the other that:
- such party has the right, power and authority to enter into these Terms and to fully perform all its obligations hereunder; and
- the making of these Terms does not violate any agreement existing between such party and any third party.
B. Limited Service Warranty.
We warrant that we will use commercially reasonable efforts to deliver and perform the Services in a good and workmanlike manner consistent with applicable industry standards and the functional requirements and technical specifications set forth in the applicable Order Form.
A. By PDL.
We shall, at our own expense, indemnify you from and against any damages finally awarded in a final adjudication on the merits, to the extent of any finding therein that the PDL Technology, when used in strict compliance with the license rights and use instructions provided by PDL infringed or misappropriated a third party’s UK copyright or UK trade secret rights; provided we receive prompt notice and the opportunity to provide the defence and participate in the litigation and settlement negotiations. Notwithstanding the foregoing, we shall have no liability, and shall have no obligation to defend or indemnify you, for any third party claim of infringement to the extent based upon (i) use of other than the then current, unaltered version of the PDL Technology and applicable Services, unless the infringing portion is also in the then current, unaltered release; (ii) use of the Services or PDL Technology other than strictly in accordance with our instructions and documentation; (iii) use, operation or combination of the applicable Services with non PDL programs, data, equipment or documentation if such infringement would have been avoided but for such use, operation or combination; or (iv) any third party hardware or software. In the event the use of any Service or PDL Technology is, or we believe is likely to be, alleged or held to infringe any third party intellectual property right, we may, at our sole option and expense, (a) procure for you the right to continue using the affected service, (b) replace or modify the affected service with functionally equivalent service so that it does not infringe, or, if either (a) or (b) is not commercially feasible, (c) terminate the Services and refund the fees received by us from you for the affected service for the remaining Term of then-current subscription period. THE FOREGOING CONSTITUTES OUR ENTIRE LIABILITY, AND YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY THIRD PARTY CLAIMS OF INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND OR NATURE.
B. By You.
You shall defend, indemnify and hold us harmless from and against any and all claims, damages, obligations, losses, liabilities, and expenses (including without limitation reasonable attorney’s fees) arising from: (i) the violation of these Terms; or (ii) the violation of any third party intellectual property or privacy right (for both (i) and (ii) by you or your Affiliates or customers); provided, that we (a) promptly give you written notice of the claim; (b) give you control of the defence and settlement of the claim (provided that you may not settle any claim unless the settlement unconditionally release us of all liability); and (c) provide to you all reasonable assistance, at your expense. We may participate in the defence and settlement activities with counsel of our choosing at your expense.
10. Disclaimers, limitation of damages and liability
A. Disclaimers and exclusive remedy.
Except for the representations and limited warranty in sections 8.A (Representations) and 8.B. (Limited Service Warranty), the Services and PDL Technology are provided “as is” without warranties of any kind, either express or implied or any warranties arising from a course of dealing or trade usage including but not limited to the implied warranties of merchantability, non-infringement, fitness for a particular purpose, nor do we warrant that the PDL Technology or Services will be uninterrupted or error-free or regarding the security, accuracy, reliability, timeliness or performance of the Services. We make no warranty about the suitability of the PDL Technology or Services for any purpose and do not warrant that the PDL Technology or Services will meet your requirements. In the case of a breach of warranty by PDL, your sole and exclusive remedy shall be to receive the remedies set forth herein.
B. Indirect and consequential damages.
To the maximum extent permitted by applicable law, excluding the indemnification obligations in section 10, or claims, liabilities or losses associated with a breach of your obligations under sections 5 through 7, in no event will either party be liable for any indirect, special, incidental, consequential or exemplary damages arising out of or in any way relating to these terms, the services provided, or the use of or inability to use the services including, without limitation, damages for loss of goodwill, work stoppage, lost profits, loss of data, computer failure or any and all other commercial damages or losses even if advised of the possibility thereof and regardless of the legal or equitable theory (contract, tort, strict liability or otherwise) upon which the claim is based.
C. Limitation of liability.
In no event will PDL’s aggregate, cumulative liability arising out of or relating to these terms and all order forms exceed the amounts received by us from you during twelve (12) months immediately preceding the first event giving rise to liability, with respect to the particular service giving rise to liability under the most applicable ordering document. This limitation is cumulative for all claims howsoever arising under all agreements and ordering documents, and this limitation shall apply even if the remedies provided in this agreement shall fail of their essential purpose.
D. Basis of bargain.
You acknowledge and agree that the foregoing Sections on warranties and disclaimers, indemnification and limitation of liability fairly allocate the risks between the parties and are essential elements of the basis of the bargain between the parties. You expressly acknowledge that the fees that we charge for the services are based upon our expectation that the risk of any loss or injury that may be incurred by use of the services will be borne by you and not us and were we to assume any further liability other than as set forth herein, such fees would of necessity be set substantially higher.
11. General provisions
You agree to provide PDL with your e-mail address, to promptly provide PDL with any changes to your e-mail address, and to accept emails (or other electronic communications) from PDL at the e-mail address you specify. Except as otherwise provided in this Agreement, you further agree that PDL may provide any and all notices, statements, and other communications to you through either e-mail or posting on the Service. Notices to you may be provided by email and shall be addressed to the system administrator or user designated by you for your relevant Services account, and in the case of billing-related notices, to the relevant billing contact designated by you. PDL maintains the right to require placement of a valid email address within the Services portal for both billing, Services notification and notices purposes. In no event shall PDL held liable for negative consequences resulting from a lack of PDL notices in the case notification email addresses are not included by you in the Services portal as required. Legal notices to you may at our option also be sent to an address that you have last provided, and such notices to us should be sent to Panoramic Data Limited, 46 Heywood Avenue, Maidenhead, SL6 3JA, United Kingdom, Attention Managing Director.
B. Governing Law and Jurisdiction.
Each party agrees to the applicable governing law of England and Wales without regard to choice or conflicts of law rules, and except for actions seeking injunctive relief, the parties agree to the exclusive jurisdiction of the federal and state courts in England and Wales.
C. Notice to U.S. Government Users.
All PDL products and services are commercial in nature. The Software and PDL Technology are “Commercial Items,” as defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are licensed to U.S. Government end users (1) only as Commercial Items, and (2) with only those rights as are granted to other users pursuant to Terms hereof. All unpublished rights are reserved.
Software and technical data are subject to UK export control laws and may be subject to export or import regulations in other countries. You agree not to export the Software or PDL Technology or PDL’s technical data in violation of any such laws or regulations and to comply strictly with all applicable rules and regulations.
E. Relationship of the Parties.
The parties are independent contractors and these Terms do not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. There are no third-party beneficiaries to these Terms.
F. Waiver and Cumulative Remedies.
No failure or delay by either party in exercising any right under these Terms shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
If any provision of these Terms 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 these Terms shall remain in effect.
Sections 3 (Subscription Fees, Billing and Renewal) (surviving until all fees and charges are paid), 4 (Term and Termination), 5.B. (Our Software), 6 (Ownership), 7 (Confidentiality) (surviving for the term specified therein), 9.B. (Indemnification), 10 (Disclaimers, Limitation of Damages and Liability), and 11 (General Provisions) (surviving according to the specified periods, if any), shall survive expiration or termination of this Agreement.
Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, we may assign this Agreement in its entirety, without your consent to our Affiliate provided the assignee accepts full responsibility for our obligations hereunder, or to a successor in interest pursuant to a merger, acquisition, corporate reorganisation, or sale of all or substantially all of our assets. Subject to the foregoing, these Terms shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
a. Neither party will make any news or press release regarding these Terms without the other party’s prior written consent except that: (i) you grant us the right to use your name and logo and to refer to you as a “customer” on our web sites and in our promotional materials.
b. If you an active, Paid Subscription, you can opt to have your name and logo excluded from the use set out in Section 8.J.a.(i), above by submitting a request either: (i) in writing to our registered address; or (ii) via the software’s in-built Feedback request form.
c. Subject in each case to your agreement and only on an occasional basis we may ask that you
consider in your sole discretion making a representative available: (i) to serve as a non-public reference to our prospective customers to discuss your experience working with us; and (ii) to work with us in developing and publishing case studies and press releases that describe your use of the Services.
K. Force Majeure.
Except for the nonpayment of money due, neither party shall be liable for any delay or failure in performance due to Extraordinary Circumstances (as defined in Section 2.B (Your Subscription) hereof).
L. Entire Agreement.
These Terms and any attachments hereto along with any Order Form constitute the entire agreement between the parties and supersede all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter, including but not limited to any non-disclosure and proof of concept agreements entered by the parties. No modification, amendment, or waiver of any provision of these Terms shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. In the event of any conflict or inconsistency between the provisions of this Agreement and any Order Form, the same shall be resolved by giving precedence to this Agreement.
Exhibit A – End user licence agreement
Panoramic Data Limited (referred to as “PDL,” “we,” “our”, “us” or the “Company”) regarding the use of the Company’s hosted data center monitoring services (“Service” or “Services”) software programs accompanying or provided under this Agreement (the “Software”) together with the associated media, corresponding Documentation, technical configurations, and technical data (collectively with the Service, the “PDL Technology”). “Documentation” means the user’s guide and other documentation (including print and online), if any, provided to you with the Software. “Subscriber” means the contracting party who has subscribed to the Services with PDL on either a trial or fee-bearing basis.
BY USING THE SERVICE OR DOWNLOADING, INSTALLING OR OTHERWISE USING
THE SOFTWARE OR ANY PART OF THE PDL TECHNOLOGY, YOU ARE LEGALLY BOUND BY ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THESE TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS, YOU MUST NOT ACCEPT THESE TERMS AND MAY NOT USE THE SERVICES OR SOFTWARE.
Certain third party programs or code are being provided to you via inclusion with the Software.
BY USING THE SERVICE OR INSTALLING, COPYING OR OTHERWISE USING THE
SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT AS WELL AS THE PERTINENT TERMS OF ANY THIRD PARTY SOFTWARE INCLUDED THEREIN. IF YOU DO NOT AGREE TO ALL SUCH TERMS, DO NOT USE THE SERVICE OR INSTALL OR USE THE SOFTWARE.
Subject to your compliance with the terms of this Agreement, we hereby grant you a
limited, non-exclusive, non-transferable and non-sublicensable licence to download, install and use
Software (in object code form) onto your network for the sole purpose of using the Services.
Software is not sold but licensed hereunder. PLEASE NOTE THAT YOUR USE OF
SERVICE IS ALSO SUBJECT TO THE SUBSCRIBER’S CONTINUED GOOD STANDING AND
SUBSCRIBER’S COMPLIANCE WITH THE TERMS OF SERVICE THAT ARE
AVAILABLE AT https://Alert.Magicsuite.net/.
The Software is licensed solely for use by you. The Company and its licensors
reserve all rights not expressly granted to you in this Agreement. Without limiting the generality of the foregoing, you shall not nor shall you give permission to, allow or enable any other party to:
- (i) make copies of the Software except as expressly set forth in this Agreement, or
- (ii) disassemble, decompile or translate any part of the Software, or otherwise attempt to reconstruct or discover the source code of the Software, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation, or
- (iii) modify or create Derivative Works based upon the Software, or
- (iv) externally distribute, sublicense, resell, encumber or otherwise transfer the Software, or
- (v) rent, lease, lend, or use the Software, or any part thereof, for timesharing or bureau use, or
- (vi) give permission to, allow or enable a third party to copy, access, or use the Software (except as expressly provided in this Agreement), or
- (vii) alter or remove any copyright, trademark or other proprietary notice which may appear on the Software,
- (viii) take any action that would cause the Software to be placed in the public domain or become subject to open source license agreement, or
- (ix) use the Software in any manner that violates any statute, law, rule, regulation, directive, guideline, bylaw whether presently in force or may be implemented by federal, state or local authorities.
A “Derivative Work” for this agreement means any modification of or extension to any software, process, algorithm, trade secret, work of authorship, invention, or to any other intellectual property right therein or thereto.
3. Third Party Licenses.
For the avoidance of doubt, third party software included with the Software is free or appropriately-licensed software licensed under the terms of Company agreements. You understand and agree that, although provided to you by the Company with the Software, your use of such software shall be and is governed by the terms and conditions of this Agreement, which includes your acknowledgement that the Software is being provided “AS IS” WITHOUT ANY WARRANTY, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
4. Term, Use of Services and Termination.
A. This agreement is in force from the earlier of your electronic acceptance of these terms or your use of the Services or Software and subject to any earlier termination, will remain in force for the duration that the Subscriber remains a customer in good standing through the period of any trial and subscription period (“Term”).
B. Your use of the Services, and all information, data or reporting derived from said use,
is expressly only licensed for the duration of the subscription or trial term while you and the Subscriber remain a current customer in good standing. You acknowledge and agree that you will not have access to historical information or data related to your use of the Services upon expiration or termination of your or the Subscriber’s use of the Services.
C. The licenses granted herein shall automatically terminate without notice at the end of
the subscription period and if you or the Subscriber fail to comply with any material provision of this
Agreement. In such event, you agree to immediately stop using the Services and uninstall and return the Software, including all Documentation and original media, to the Company. This shall not limit or affect any remedy available to the Company for any breach of this Agreement.
A. You acknowledge and agree that the Software and Service, including
the specific design and structure of individual programs, components and aspects thereof, are the valuable trade secrets and proprietary and copyrighted material of PDL, and that PDL owns all rights, title and interest in and to all intellectual property rights in the Services, the Software and all technology, information, trade secrets, patent rights, copyrights, know-how and documentation associated therewith as provided or otherwise made available by PDL and used in the performance of the Services or Software, including all intellectual property rights in Derivative Works therein on a worldwide basis (collectively, the “PDL Technology”). The license granted to you is limited by these Terms and does not convey any other rights in the PDL Technology, express or implied, nor does it grant any ownership in the PDL Technology or any intellectual property rights therein or thereto. Any rights not expressly granted herein are reserved by PDL.
B. You agree that for any customisations, customised implementations or extensions of
the Software or PDL Technology which are disclosed to us but not owned by us
(“Developments”), such Developments are hereby licensed to us on an unlimited, non-confidential,
nonexclusive, irrevocable, worldwide, royalty-free, sublicensable basis to perform services, use,
distribute, publish, display, sell, have sold, make, have made, create Derivative Works of, import, export, and license the Developments and products and services utilising or incorporating the Developments, and to otherwise commercially exploit the same.
C. You agree not to remove any copyright or proprietary legends in the PDL
Technology, and to implement reasonable security measures to protect our proprietary rights therein from unauthorised use or disclosure. Certain marks, words and logos displayed on the Services, which may or may not be designated by a “™” “®” “SM” or other similar designation, constitute trademarks, trade names, or service marks belonging to us or our licensors. You are not authorised to use any such marks. Ownership of all such marks and the goodwill associated therewith remains with us or our respective licensors.
6. Confidential Information.
PDL “Confidential Information” means all of our data information of a proprietary or confidential nature, whether or not labelled confidential, including but not limited to the Software and PDL Technology, trade secrets, business plans and strategies, system architecture, libraries, algorithms, processes and Services design and working details. You agree to treat as confidential all Confidential Information, not to use the same except as expressly set forth herein or otherwise authorised in writing, implement reasonable procedures to prohibit the disclosure, unauthorised
duplication, misuse or removal of the Confidential Information and not to disclose such Confidential
Information to any third party. You shall restrict access to such materials to those employees who have agreed to be bound by a confidentiality obligation which incorporates the protections and restrictions substantially as set forth herein, and who have a need to know in order to carry out the purposes of this Agreement. Without limiting the foregoing, you shall use at least the same procedures and degree of care you use to protect and prevent the disclosure of your most sensitive confidential information, but in no event less than reasonable care. PDL shall have no obligation to maintain in confidence any information you provide unless expressly agreed in an agreement signed and accepted by us. However, we may have separately agreed to certain confidentiality terms and restrictions on use and disclosure of user and Subscriber Information under our Terms of Service.
7. Representations and Limited Warranty.
You represent and warrant that you have the right, power and authority to enter into these Terms and to fully perform all obligations hereunder and that the making of these Terms does not violate any existing agreement to which you are a party. Our warranties are issued to and may be relied upon only by the Subscriber. We warrant to the Subscriber pursuant to the Terms of Service that we will use commercially reasonable efforts to deliver and perform the Services in a good and workmanlike manner consistent with applicable industry standards.
8. Disclaimers and Limitation of Damages and Liability.
A. Disclaimer of Warranties.
WITH THE EXCEPTION OF THE EXPRESS WARRANTIES IN SECTION 7 (Representations and Warranties) ABOVE, THE SERVICES, SOFTWARE AND PDL TECHNOLOGY ARE PROVIDED “AS IS” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED OR ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR TRADE USAGE INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, NOR DO WE WARRANT THAT THE PDL TECHNOLOGY OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR REGARDING THE SECURITY, ACCURACY, RELIABILITY, TIMELINESS OR PERFORMANCE OF THE SERVICES. WE MAKE NO WARRANTY ABOUT THE SUITABILITY OF THE PDL TECHNOLOGY OR SERVICES FOR ANY PURPOSE AND DO NOT WARRANT THAT THE PDL TECHNOLOGY OR SERVICES WILL MEET YOUR REQUIREMENTS. IN THE CASE OF A BREACH OF WARRANTY BY PDL, YOUR SOLE AND EXCLUSIVE REMEDY SHALL BE, AT OUR OPTION, FOR PDL TO REPERFORM THE SERVICES OR TO RECEIVE A PRO RATA RETURN OF FEES CORRESPONDING TO THE NONCONFORMING SERVICE.
B. No Consequential or Incidental Damages.
EXCEPT AS BETWEEN PDL AND SUBSCRIBER – WITH RESPECT TO WHICH THE TERMS OF SERVICE AGREEMENT BETWEEN THEM SHALL CONTROL, IN NO EVENT SHALL PDL BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF, PURSUANT TO OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFIT OR OTHER MONETARY LOSS, EVEN IF ADVISED IN WRITING IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.
C. Limitation Of Liability.
IN NO EVENT WILL PDL’S TOTAL, AGGREGATE LIABILITY UNDER THIS AGREEMENT FOR ALL CLAIMS BY YOU OR THE SUBSCRIBER OR ANY THIRD PARTY OF WHATEVER NATURE EXCEED THE MONIES RECEIVED BY PDL FROM THE SUBSCRIBER PURSUANT TO ITS AGREEMENT WITH PDL DURING THE PRIOR THREE (3) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO LIABILITY, MINUS ALL CLAIMS PREVIOUSLY PAID HEREUNDER. THIS LIMITATION IS CUMULATIVE FOR ALL CLAIMS HOWSOEVER ARISING UNDER ALL AGREEMENTS, AND THIS LIMITATION SHALL APPLY EVEN IF THE REMEDIES PROVIDED IN THIS AGREEMENT SHALL FAIL OF THEIR ESSENTIAL PURPOSE.
9. General Provisions.
A. Export Restrictions.
You agree to comply with all export and re-export restrictions and regulations (“Export Restrictions”) imposed by the United Kingdom or any other country in which you conduct business. You will not commit any act or omission that will result in a breach of any such Export Restrictions. Your breach of this clause shall constitute cause for immediate termination of this Agreement.
B. Notice to U.S. Government Users.
All PDL products and services are commercial in nature. The Software and PDL Technology are “Commercial Items,” as defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are licensed to U.S. Government end users (1) only as Commercial Items, and (2) with only those rights as are granted to all other end users pursuant to Terms hereof. All unpublished rights are reserved
C. High Risk Activities.
The Software is not designed, manufactured or intended for use
or resale as on-line control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, or weapons systems, in which the failure of the Software could lead directly to death, personal injury, or severe physical or environmental damage (“High Risk Activities”). The Company specifically disclaims any express or implied warranty of fitness for High Risk Activities.
D. Miscellaneous Provisions.
Choice of Law: This Agreement shall be governed by the laws of the England and Wales, except for its conflict of laws principles, and you agree to bring any claims against Company only in the courts located in England and Wales, and you hereby submit to the jurisdiction of such courts.
Severability: In the event that any one or more provisions of this Agreement shall be declared invalid, illegal, or unenforceable in any respect by a court of competent jurisdiction, the validity, legality, enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby.
Entire Agreement: This is the entire agreement with respect to its subject matter, and will apply exclusively, notwithstanding any terms and conditions in any prior agreements. However, as between PDL and Subscribers, the Terms of Service at https://Alert.Magicsuite.net/ shall also apply – and shall control with respect to any conflicts with the terms and conditions of this End User License Agreement.
Notices: You agree to provide PDL with your e-mail address, to promptly provide PDL with any changes to your email address, and to accept emails (or other electronic communications) from PDL at the e-mail address you or Subscriber specifies. Except as otherwise provided in this Agreement, you further agree that PDL may provide any and all notices, statements, and other communications to you through either e-mail or posting on the Service. Notice to us may be sent to the address set forth on our Website at https://Alert.Magicsuite.net/.
Assignability: Neither the benefits nor obligations of this Agreement are assignable by you without the prior written consent of PDL.
Survival: Section 2 (Restrictions), 4 (Term, Use of Services and Termination), 5 (Ownership), 6 (Confidentiality), 8 (Disclaimers and Limitation of Damages and Liability), and 9 (General Provisions), shall survive expiration or termination of this Agreement.
No Waiver: Failure to enforce any right or obligation of the other party shall not act as
a waiver thereof.