This website is provided by Pandora Intelligent Networks a division of PragmaTech Ltd. (“Pandora Intelligent Networks”), located at Ontario, Canada.
By using our websites you are agreeing that the content of the pages of this website is for your general information and use only. It is subject to change without notice.
Thank you for using our products and services (“Services”), which are provided by Pandora Intelligent Networks – a division of PragmaTech Ltd. (“Pandora Intelligent Networks”), located in Ontario, Canada.
By using our Services, you are agreeing to these terms. Please read them carefully.
Our Services are diverse, so sometimes additional terms or product requirements may apply. Additional terms will be available with the relevant Services, and those additional terms become part of your agreement with us if you use those Services.
“Affiliate” means, with respect to a party, any entity which directly or indirectly Controls, is Controlled by, or is under common Control with such party.
“Confidential Information” has the meaning set forth in Section 11.
“Control” means ownership or control, directly or indirectly, of more than 50% of the voting interests of the subject entity.
“Customer” means the entity whose name is set forth on the applicable Order Form and its Affiliates.
“Customer Data” means all data stored by Customer in the Hosted Service.
“Customer Equipment” means Customer’s computer hardware, software and network infrastructure used to access the Hosted Service.
“Documentation” means the description of the Hosted Service contained in the then current Hosted Service datasheet.
“Effective Date” means the last date upon which one party executes this Agreement.
“Extension Term” means each renewal subscription period for which the subscription term applicable to a Hosted Service Order Form is extended pursuant to Section 13.
“Force Majeure Event” means a natural disaster, actions or decrees of governmental bodies or communications line failure which (i) hinders, delays or prevents a party in performing any of its obligations, and (ii) is beyond the control of, and without the fault or negligence of, such party, and (iii) by the exercise of reasonable diligence such party is unable to prevent or provide against.
“Hosted Service” means the hosted, on demand Web-based Pandora Intelligent Networks platform developed and provided by PragmaTech Ltd.
“Initial Term” means the first subscription term period for the Hosted Service defined on an Order Form, or if no such term period is defined, twelve (12) months, commencing on the date Customer executes such Order Form.
“Order Form” means an ordering document for the Hosted Service signed by Customer.
“Services” means the installation, implementation, training or other professional services provided hereunder to Customer.
“Subscription Fees” mean the fees paid by Customer for the right to access and use the Hosted Service and receive standard support during the Term.
“System Availability” means the percentage of the time that the Hosted Service is available to Customer as measured against the time that the application is available.
“Taxes” means any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, sales, use or withholding taxes.
“Term” means the Initial Term and any Extension Term applicable to each Order Form.
“Users” means Customer’s employees, agents, contractors or consultants who are authorized by Customer to use the Hosted Service and who have been supplied user identifications and passwords by Customer or by Pandora intelligent Networks at Customer’s request.
“Work Product” means all work developed or created by using Pandora Intelligent Networks’s platform during the course of providing support or Services to Customer. Work Product does not include any Customer Data or Customer Confidential Information.
2. Terms oF Hosted Service
Pandora Intelligent Networks shall make the Hosted Service available to Customer in accordance with this Agreement, and each Order Form mutually entered into and the then current Documentation. As long as this Agreement is in effect the functionality of the Hosted Service will not be materially less than that defined in the Documentation in effect as of the Effective Date. Subject to the terms of this Agreement, Pandora Intelligent Networks grants Customer a limited term, non-sublicensable, non-transferable, and non-exclusive license to access and use the Hosted Service for Customer’s internal business purposes.
3. Customer Responsibilities Relating to Use of the Hosted Service
3.1 Customer is responsible for (I) all activities conducted under its User logins; and (ii) obtaining and maintaining any Customer Equipment and any ancillary services needed to connect to, access or otherwise use the Hosted Service.
3.2 Customer agrees to use the Hosted Service in compliance with applicable law, and not: (a) resell, sublicense, lease, time- share or otherwise make the Hosted Service available to any third party other than as contemplated by this Agreement; (b) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (c) use the Hosted Service to send or store infringing or unlawful material or material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; or (d) attempt to gain unauthorized access to, or disrupt the integrity or performance of the Hosted Service or the data contained therein.
3.3 Customer agrees to not (a) modify, copy or create derivative works based on the Hosted Service; (b) reverse engineer the Hosted Service; (c) access the Hosted Service for the purpose of building a competitive product or service or copying its features or user interface; (d) create Internet “links” to or from the Hosted Service, or “frame” or “mirror” any content forming part of the Hosted Service, other than on Customer’s own intranets or otherwise for its own internal business purposes; (e) use the Hosted Service, or permit it to be used, for purposes of product evaluation, benchmarking or other comparative analysis intended for publication without Pandora Intelligent Networks prior written consent; or (d) permit access to the Hosted Service by a direct competitor of Pandora Intelligent Networks
3.4 IF CUSTOMER FAILS TO COMPLY WITH THE OBLIGATIONS SET FORTH IN THIS SECTION 3 Pandora Intelligent Networks HOSTED SERVICE TERMS AND CONDITIONS SHALL INFORM CUSTOMER THEREOF AND RESERVES THE RIGHT TO SUSPEND THE HOSTED SERVICE UNTIL SUCH FAILURE IS REMEDIED.
4. Consulting Services
Consulting services will be provided on the terms set forth in a mutually executed Order Form or statement of work at the fees specified therein.
5.1 As between the parties, Pandora Intelligent Networks shall retain all ownership rights in the Hosted Service, the technology, software, hardware, products, processes, algorithms, user interfaces and know-how related to the Hosted Service and Work Product. Customer shall retain all ownership rights in the Customer Data and all data, text, files, data, output, programs, files, information, or other information material that Customer provides, develops, generates, creates, makes available or uses in conjunction with the Hosted Service. Customer may export its Customer Data from the Hosted Service at any time during its subscription term. Pandora Intelligent Networks hereby grants Customer a royalty-free, fully paid-up, nonexclusive, perpetual, irrevocable, worldwide, transferable (only to a successor in interest by way of merger, reorganization or sale of all or substantially all assets or equity), license to use, copy, modify or distribute the Work Product solely for its internal business purposes. No license, right or interest in any Pandora Intelligent Networks or Customer trademark, copyright, trade name or service mark is granted hereunder.
5.2 Pandora Intelligent Networks shall have a royalty-free, fully paid-up, nonexclusive, perpetual, irrevocable, worldwide, transferable license to use, copy, modify, or distribute, including by incorporating into the Hosted Service, any suggestions, enhancement requests, recommendations or other feedback provided by Customer or its Users relating to the operation of the Hosted Service.
6.1 Upon execution of the applicable ordering document, payment obligations are non-cancelable and, except as expressly provided in this Agreement, upon payment, all payments made by Customer are non-refundable. All undisputed fees due hereunder shall be due and payable within thirty (30) days of receipt of invoice. Any payment not received from Customer by the due date may result in suspension of Customer’s ability to access the Hosted Service until payment is made.
6.2 Unless otherwise provided, Pandora Intelligent Networks fees do not include any Taxes, and Customer is responsible for paying all Taxes associated with its purchases hereunder. If Pandora Intelligent Networks has the legal obligation to pay or collect Taxes for which Customer is responsible, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides a valid tax exemption certificate authorized by the appropriate taxing authority.
6.3 Customer shall reimburse Pandora Intelligent Networks for all reasonable, pre- approved and appropriately documented travel and related expenses incurred by PragmaTech LTD in performing Services at Customer’s location. Customer shall be responsible for its own travel and out-of pocket expenses associated with attending any training services at a PragmaTech LTD’s facility.
PragmaTech LTD shall provide standard support provided Customer is current in payment of Subscription Fees and any support fees due for premium levels of support. Support shall be provided in accordance with the terms and conditions described in PragmaTech LTD’s then current technical support policy.
8.1 Each party represents and warrants that (i) it has the legal power to enter into and perform under this Agreement; and (ii) it shall comply with all other applicable laws in its performance hereunder.
8.2 Pandora Intelligent Networks warrants (i) it will provide the Services in a professional and workmanlike manner consistent with good industry standards and practices; and (ii) that for a period of three (3) months after completion the Services will conform to the applicable statement of work. As Customer’s sole and exclusive remedy and Pandora Intelligent Networks entire liability for any breach of the foregoing warranty, Pandora Intelligent Networks will re-perform the Services, or, if Pandora Intelligent Networks is unable to do so, return the fees paid to Pandora Intelligent Networks for such deficient Services.
8.3 Pandora Intelligent Networks warrants that the Hosted Service will perform in all material respects in accordance with the Documentation. As Customer’s sole and exclusive remedy and Pandora Intelligent Networks entire liability for any breach of the foregoing warranty, Pandora Intelligent Networks will fix, provide a work around, or otherwise repair or replace the nonconforming Hosted Service, or, if Pandora Intelligent Networks is unable to do so, terminate the license for the Hosted Service and return the Hosted Service Fees paid to Pandora Intelligent Networks for the period beginning with Customer’s notice of nonconformity through the remainder of the Initial Term or Extension Term, as applicable.
8.4 Pandora Intelligent Networks warrants at least 98% System Availability during each calendar month. Should Pandora Intelligent Networks fail to achieve 98% System Availability in each of two consecutive calendar months, Customer shall have the right to terminate this Agreement for cause, in which case Pandora Intelligent Networks will refund to Customer any prepaid fees for the remainder of its subscription term after the date of termination. Claims under this service level warranty must be made by submitting a support case within 15 business days after the end of the relevant period. Customer acknowledges that the Hosted Service is hosted on the existing infrastructure and services provided by PragmaTech Ltd. Hosted Service (i) reliability; (ii) timeliness standards; and (iii) schedule for downtime for routine maintenance, will be the same as provided by the PragmaTech Ltd. application.
8.5 The Hosted Service performance and System Availability warranties set forth in Sections 8.3 and 8.4 respectively, are void to the extent any problem which results in the Hosted Service performance or System Availability to be other than as warranted is due to: (i) third party software, hardware or network infrastructure outside of Pandora Intelligent Networks data center and not under the direct control of Pandora Intelligent Networks; (ii) failure of the external internet beyond Pandora Intelligent Networks network’s ; (iii) electrical or internet access disruptions; (iv) any actions or inactions of Customer; (v) attacks (i.e. hacks, denial of service attacks, malicious introduction of viruses and disabling devices) caused by third parties; or (vi) a Force Majeure event.
8.6 EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY NOR ITS LICENSORS OR SUPPLIERS MAKES ANY WARRANTIES OF ANY KIND, WHETHER IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Pandora Intelligent Networks DOES NOT WARRANT THE OPERATION OF THE HOSTED SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.
9. Patent and Copyright Indemnity
9.1 Pandora Intelligent Networks will, at its sole option and expense: (i) procure for Customer the right to continue using the Hosted Service under the terms of this Agreement; (ii) replace or modify the Hosted Service 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 Hosted Service and refund Customer all prepaid fees for the remainder of its subscription term after the date of termination.
9.2 Pandora Intelligent Networks shall have no liability for any Claim to the extent the Claim is based upon (i) the use of the Hosted Service in combination with any other product, service or device not furnished, recommended or approved by Pandora Intelligent Networks , if such Claim would have been avoided by the use of the Hosted Service, without such product, service or device; or (ii) Customer’s use of the Hosted Service other than in accordance with this Agreement.
9.3 THE PROVISIONS OF THIS SECTION 9 SET FORTH Pandora Intelligent Networks SOLE AND EXCLUSIVE OBLIGATIONS, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.
10. Indemnification by Customer
Customer shall defend, indemnify and hold Pandora Intelligent Networks harmless against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with Claims made or brought against Pandora Intelligent Networks by a third party alleging that the Customer Data created and stored by Customer in the Hosted Service or otherwise provided to Pandora Intelligent Networks in connection with the Agreement (i) violates any applicable law or regulation; or (ii) infringes any patent, copyright or other intellectual property right of a third party; provided, that Pandora Intelligent Networks (a) promptly gives written notice of the Claim to Customer; (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle any Claim unless it unconditionally releases Pandora Intelligent Networks of all liability); and (c) provides to Customer, at Customer’s cost, all reasonable assistance.
11.1 As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected in Order Forms), Customer Data, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information (except Customer Data) shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to Disclosing Party; (ii) was known to Receiving Party prior to its disclosure by Disclosing Party without breach of any obligation owed to Disclosing Party; (iii) was independently developed by Receiving Party without breach of any obligation owed to Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to Disclosing Party.
11.2 Receiving Party shall not disclose any Confidential Information of Disclosing Party for any purpose outside the scope of this Agreement, except with Disclosing Party’s prior written consent. Receiving Party shall protect the confidentiality of Disclosing Party’s Confidential Information in the same manner that it protects the confidentiality of its own confidential information of like kind (but in no event using less than reasonable care). Pandora Intelligent Networks represents and warrants that it will maintain the confidentiality of Customer Data in accordance with all applicable laws and, except as required by applicable law, will not disclose Customer Data to any third party for any purpose other than to provide the Hosted Service or Services to Customer, provided, however, that Pandora Intelligent Networks may compile aggregate data related to Customer’ s usage of the Hosted Service and may disclose such aggregate data to third parties to the extent that Customer is not identified as the source of such data. Each party represents and warrants that it will collect, maintain and handle all personal data in compliance with all applicable data privacy and protection laws. Receiving Party shall promptly notify Disclosing Party if it becomes aware of any actual or reasonably suspected breach of confidentiality of Disclosing Party’s Confidential Information.
11.3 If Receiving Party is compelled by law to disclose Confidential Information of Disclosing Party, it shall provide Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if Disclosing Party wishes to contest the disclosure.
11.4 If Receiving Party discloses (or threatens to disclose) any Confidential Information of Disclosing Party in breach of confidentiality protections hereunder, Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being acknowledged by the parties that any other available remedies are inadequate. 11.5. Upon any termination of this Agreement, the Receiving Party shall continue to maintain the confidentiality of the Disclosing Party’s Confidential Information and, upon request, return to the Disclosing Party or destroy (at the Disclosing Party’s election) all materials containing such Confidential Information.
12. Limitation of Liability
12.1 EXCEPT (i) FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS; (ii) EITHER PARTY’S MATERIAL BREACH OF SECTION 11 (“CONFIDENTIALITY”); OR (iii) EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE SUBSCRIPTION FEES PAID TO Pandora Intelligent Networks DURING TWELVE MONTHS PRIOR TO THE CLAIM.
12.2 TO THE MAXIMUM EXTENT PERMITTED BY LAW IN NO EVENT SHALL EITHER PARTY OR ITS LICENSORS OR SUPPLIERS HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13. Term and Termination
13.1 This Agreement commences on the Effective Date and continues until all User subscription licenses granted in accordance with this Agreement have expired or been terminated. The Initial Term applicable to each Order Form commences upon Customer’s execution of such Order Form. Upon expiration of the Initial Term and each Extension Term the Hosted Service subscription term applicable an Order Form shall automatically renew for Extension Terms unless either party gives the other notice of non-renewal at least 30 days prior to the end of the relevant subscription term.
13.2 A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach of this Agreement if such breach remains uncured at the expiration of such period; (ii) immediately upon written notice if the other party becomes the subject of a bankruptcy, insolvency, receivership, liquidation, assignment for the benefit of creditors or similar proceeding; or (iii) as otherwise provided herein. Upon any termination for cause by Customer, Pandora Intelligent Networks shall refund Customer any prepaid fees for the remainder of its subscription term after the date of termination.
13.3 The parties’ rights and obligations with respect to the fees and payment terms, audit rights, title and protection, confidentiality, patent and copyright indemnification, warranty disclaimers, limitation of liability, attorney’s fees, and governing law provisions of this Agreement shall survive termination of this Agreement.
13.4 Upon the effective date of termination of this Agreement Customer’s license to use the Hosted Service will cease and upon request by Customer made within 30 days of the effective date of termination, Pandora Intelligent Networks will make available to Customer for download a file of Customer Data in comma separated value (.csv) format. After such 30 day period Pandora Intelligent Networks will have no obligation to maintain or provide any Customer Data and will not retain copies or records of Customer Data in its system or otherwise.
14.1 The parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties is created hereby. There are no third party beneficiaries to this Agreement.
14.2 Notices shall be in writing and effective upon receipt.
14.3 No amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed by Customer and Pandora Intelligent Networks. To the extent of any conflict between this Agreement and any other schedule or attachment, this Agreement shall prevail unless expressly stated otherwise. Notwithstanding any language to the contrary therein, no terms stated in a purchase order or similar ordering document (other than a statement of work or other mutually executed order document expressly incorporated herein) shall be incorporated into this Agreement, and all such terms shall be void. This Agreement represents the entire agreement of the parties, and supersedes all prior or contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.
14.4 Neither party may issue press releases relating to this Agreement without the other party’s prior written consent. Either party may include the other’s name or logo in customer or vendor lists in accordance with the other’s standard guidelines. In addition, Pandora Intelligent Networks may refer to Customer’s intended use of the Hosted Service in its marketing materials and on its websites as well as in discussions with Pandora Intelligent Networks customers, prospective customers, and industry and financial analysts.
14.5 No failure or delay in exercising any right hereunder shall constitute a waiver of such right. Except as otherwise provided, 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 this Agreement is held by a court of competent jurisdiction to be contrary to law, such 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 shall remain in effect.
14.6 Neither party shall be liable to the other for any delay or failure to perform hereunder (excluding payment obligations) due to a Force Majeure Event.
14.7 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 (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms hereunder), without consent of the other party, to its successor in interest in connection with a merger, reorganization, or sale of all or substantially all assets or equity not involving a direct competitor of the other party. Any attempted assignment in breach of this section shall be void. This Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
14.8 Each party agrees to comply with all applicable regulations of the United States Department of Commerce and with the United States Export Administration Act, as amended from time to time, and with all applicable laws and regulations of other jurisdictions with respect to the provision and use of the Hosted Service.
14.9 Arbitration: This agreement shall be governed by the laws of the Province of Ontario, Canada. Any and all disputes arising out of or in connection with the negotiation, execution, interpretation, performance, or non-performance of the Agreement, including, without limitation, the validity, scope and enforceability of this arbitration paragraph, shall be solely and finally settled by arbitration in the Province of Ontario.
Either party hereto may demand arbitration by written notice to the other party. Each party shall nominate one arbitrator who shall be an attorney in good standing with the Province of Ontario. Such nominee shall be independent of the party appointing him. The two arbitrators so appointed shall select a third arbitrator, who shall also be an attorney in good standing with the Province of Ontario and who is independent of each of the parties. Should either party fail to appoint its arbitrator within thirty (30) days of notice of appointment by the other party of its arbitrator, then the requesting party shall name both arbitrators and they shall proceed to name the third arbitrator as provided above.
The award of the majority of arbitrators shall be final and binding upon the parties, and judgment upon any award rendered by the arbitrators may be entered by any Provincial or federal court having jurisdiction thereof.
Any demand for arbitration pursuant to this section shall be made within six months from the date that the dispute upon which the demand is based arose. Notwithstanding the foregoing, nothing in this Paragraph shall preclude the parties from mutually agreeing in writing to any alternative dispute resolution proceeding.
14.10 Marketing Data: The subscriber agrees to provide certain generic data that Pandora Intelligent Networks deems necessary for marketing purposes
14.11 Entire Agreement: This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof, and superseded all previous proposals, oral or written, and all negotiations, conversations of discussion heretofore and between the parties related to this Agreement. Each party acknowledges that it has not been induced to enter into this Agreement by any representation or statements, oral or written, not expressly contained herein.
14.12 This Agreement shall be governed exclusively by the internal laws of the Province of Ontario, Canada without regard to its conflicts of laws rules. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.