These Pandium Inc. Terms and Conditions (“T&C”) govern transactions entered into between Customer (as defined below) and Pandium Inc. (“Pandium”) pursuant to Order Form(s) (as defined below) and SOW(s) (as defined below). These T&C together with any Order Form(s) and SOW(s) constitute the “Agreement” by and between Pandium and Customer. The parties agree as follows:
A. “APIs” means any (i) application programming interface information or instructions, (ii) software development kits, or (iii) other software code snippets; in each case, made available by Pandium to Customer from time to time.
B. “Authorized Users” means employees of Customer for whom Customer has paid all applicable fees to permit them to access and/or use the Pandium Platform.
C. “Documentation” means user manuals, technical manuals, and any other materials provided by or on behalf of Pandium with the Pandium Platform, in printed, electronic, or other form, that describe the installation, operation, use, or technical specifications of the Pandium Platform.
D. “Order Form” means an ordering document or online order executed by both parties specifying the details of access to the Pandium Platform to be provided, including any addenda and supplements thereto.
E. “Order Term” means the term length specified in the applicable Order Form.
F. “Pandium Platform” means access to Pandium’s web-based software platform which enables software-as-a-service businesses to easily power their integration practices, including any updates or enhancements thereto that Pandium may provide to Customer from time to time.
G. “Professional Services” means any consulting services provided to Customer pursuant to an SOW which may include things like configuration services, providing onsite support, or any other services outside the scope of Support Services.
H. “Scope Limitations” means any limitations on Customer’s use of the Pandium Platform specified in the applicable Order Form.
I. “SOW” means a statement of work executed by both parties specifying the details of professional services to be provided
2. Use of the Pandium Platform.
A. APIs, and Documentation Orders. Each Order Form is subject to and governed by these T&C. If there is a conflict between these T&C and an Order Form, these T&C will control unless the Order Form states that a specific provision of these T&C will be superseded by a specific provision of the Order Form.
B. Access to the Pandium Platform. Subject to the terms and conditions of this Agreement and Customer’s payment of all fees, Pandium grants to Customer a limited right during the applicable Order Term, to access the Pandium Platform by and through its Authorized Users solely in connection with Customer’s internal business operations, any Scope Limitations, and in the manner described by any accompanying Documentation.
C. Privacy Notice. Please refer to our Privacy Notice for information on how we collect, use and share personal information of Authorized Users. You acknowledge and agree that your use of the Pandium Platform is subject to our Privacy Notice. Pandium’s processing of personal information contained in Customer Data is governed by our Data Processing Addendum attached hereto as Attachment 1.
D. APIs. Subject to and conditioned upon Customer’s strict compliance with the Agreement and payment of all applicable fees, Pandium grants to Customer a personal, nontransferable, non-sublicensable, non-exclusive, limited license during the applicable Order Term to, solely by and through its Authorized Users, download, install, access, use, and send and receive calls from the APIs; in each case, solely in connection with Customer’s internal business operations, any Scope Limitations, and in the manner described by any accompanying Documentation.
E. Documentation. Subject to and conditioned upon Customer’s strict compliance with the Agreement and payment of all applicable fees, Pandium grants to Customer a personal, nontransferable, non-sublicensable, non-exclusive, limited license during the applicable Order Term to, solely by and through its Authorized Users, make a reasonable number of copies of the Documentation and internally use that Documentation (including any copies), in each case, solely in support of its authorized use of the Pandium Platform in accordance with the Agreement.
F. Technical Support. For so long as Customer is current with its payment of all fees, Pandium will use commercially reasonable efforts to provide Customer with technical support services relating to use of the Pandium Platform and APIs via email during Pandium’s standard business hours (“Support Services”).
G. Restrictions. Except and solely to the extent permitted by the Agreement or by applicable law, Customer will not (and will not permit or authorize any third party to): (a) use the Pandium Platform, APIs, or Documentation except as expressly permitted under the Agreement; (b) reverse engineer, decompile, disassemble, modify, merge, or translate the Pandium Platform, APIs, or Documentation, or create derivative works of the Pandium Platform, APIs, or Documentation; (c) install or otherwise use the Pandium Platform, APIs, or Documentation in any way that would permit or authorize the Pandium Platform, APIs, or Documentation to be used in violation of the Scope Limitations or otherwise in violation of the Agreement; (d) transfer, assign, sublicense, sell, or otherwise convey any of Customer’s rights to the Pandium Platform, APIs, or Documentation; (e) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property rights notices provided on or with the Pandium Platform, APIs, or Documentation; (f) use the Pandium Platform, APIs, or Documentation after the applicable Order Term, even if the ability to use the Pandium Platform, APIs, or Documentation does not automatically become disabled; (g) transmit any software or other materials that contain any virus, worm, time bomb, trojan horse, or other harmful or disruptive component; (h) use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, “data mine”, or in any way reproduce or circumvent the navigational structure or presentation of the Pandium Plaform, APIs, or Documentation; (i) probe, scan or test the vulnerability of any system or network or breach any security or authentication measures; (j) harvest or collect information about other users without their prior written consent; (k) engage in bitcoin mining or any activity that could damage, disable, overburden, or impair Pandium’s servers or networks, or interfere with any other party’s use and enjoyment of the Pandium Platform or APIs; (l) use the Pandium Platform, APIs, or Documentation for any illegal, inappropriate, and/or unauthorized purpose; or (m) use the Pandium Platform, APIs, or Documentation in, or in association with, the design, construction, maintenance, or operation of any hazardous environments or systems, including: (i) power generation systems; (ii) aircraft navigation or communication systems, air traffic control systems or any other transport management systems; (iii) safety-critical applications, including medical or life-support systems, vehicle operation applications or any police, fire, or other safety response systems; and (iv) military or aerospace applications, weapons systems, or environments.
H. Responsibility for Use of Pandium Platform and Documentation. Customer is responsible and liable for all actions, and inactions with respect to the Pandium Platform, APIs, and Documentation by its Authorized Users or by any other person or entity to whom Customer or an Authorized User may, directly or indirectly, provide access to or permit to use the Pandium Platform, APIs, or Documentation, as if they were an action or inaction of Customer.
I. Reservation of Rights. Pandium grants to Customer only those rights relating to the Pandium Platform, APIs, and Documentation expressly described in this Agreement. Pandium reserves to itself all rights in and to the Pandium Platform, APIs, and Documentation not expressly granted to Customer in accordance with the Agreement.
J. Feedback. If Customer provides any feedback to Pandium concerning the functionality and performance of the Service (including identifying potential errors and improvements), Customer hereby assigns to Pandium all right, title, and interest in and to the feedback, and Pandium is free to use the feedback without payment or restriction.
K. Customer Data. Pandium is not responsible for performing, and is not liable for any failure to perform, any back-up of any data provided, processed, or stored by Customer in or through the Service (“Customer Data”). As between the parties, Customer owns any Customer Data, except to the extent Customer Data constitutes feedback under Section 2(J) above. Customer hereby grants to Pandium a nonexclusive, irrevocable, worldwide, fully paid-up, royalty-free, license to use, copy, modify, publish, distribute, display, publicly perform, and make derivative works of Customer Data during the applicable Order Term or SOW Term for the purpose of performing under such Order Form or SOW and conducting Pandium’s related business functions. Customer represents and warrants that Customer Data (i) does not infringe any intellectual property rights of any third party and that Customer has all intellectual property rights and other authorizations and lawful bases (including consents) necessary to use Customer Data in connection with the Pandium Platform, APIs, and any Professional Services; and (ii) is not unlawful, defamatory, obscene or offensive; and (iii) does not contain any viruses. Further, Customer agrees to defend, indemnify, and hold Pandium harmless from and against any third-party claims related to Customer’s use of the Pandium Platform, APIs, or Documentation, including, among other things, Pandium’s use of Customer Data as permitted by this Agreement. Notwithstanding anything to the contrary herein, Pandium has the right to monitor Customer’s use of the Pandium Platform and APIs and to create and analyze (in some cases with the help of third party software tools) aggregations and summaries of such usage data, provided that no such aggregation or summary directly or indirectly identifies Customer, or includes any data or information that is directly traceable to Customer. Customer acknowledges and agrees that Pandium has the unrestricted, royalty free right to use, disclose, and distribute such aggregations and summaries throughout the world, in any form or media, for any purpose.
L. Audit. Customer will, after reasonable prior written notice from Pandium, provide Pandium and its agents reasonable access to Customer’s premises, records, and personnel so that Pandium may audit and confirm that Customer complies with the Agreement.
3. Professional Services
A. Statements of Work. Each SOW is subject to and governed by these T&C. If there is a conflict between these T&C and an SOW, these T&C will control unless the SOW states that a specific provision of these T&C will be superseded by a specific provision of the SOW. Pandium will perform any Professional Services in accordance with these T&C and the applicable SOW.
B. Ownership. Unless otherwise provided in a SOW, Pandium retains all right, title and interest in and to any software programs, tools, specifications, ideas, concepts, inventions, know-how, processes, and techniques that Pandium uses or develops in connection with performing Professional Services, as well as all intellectual property rights therein. Unless otherwise provided in a SOW, and subject to Customer’s payment of all applicable fees, Pandium grants you a limited, nonexclusive, worldwide, royalty-free, nontransferable license during the applicable SOW Term to use such materials, solely in connection with your permitted use of the Pandium Platform and APIs.
C. License to Marks. To the extent that any Professional Services involve the use of Customer’s trademarks or logos (collectively, the “Marks”), Customer hereby grants to Pandium a nonexclusive, royalty-free, non-transferable, worldwide right and license, throughout the applicable SOW Term to copy, reproduce, use, display, publicly perform, modify (at Customer’s direction), and resize the Marks in order to perform the Professional Services as described in the applicable SOW. As between the parties, Customer owns all right, title, and interest in and to the Marks and any and all goodwill that is created by or that results from Pandium’s use of the Marks under a SOW will inure solely to Customer. Customer represents and warrants that Pandium are the sole and exclusive owner of the Marks, and that Customer has the right to grant the licenses agreed to in this Section. Customer agrees to indemnify, defend, and hold Pandium harmless from and against any third party claim arising out of or related to Pandium’s use of the Marks as permitted by this Agreement.
4. Fees and Payment.
A. Payment. Customer will pay Pandium the fees and any other amounts owing under this Agreement, as specified in the applicable Order Form or SOW. Unless otherwise specified in an Order Form or SOW, Customer will pay all amounts due within 30 days of the date of the applicable invoice. Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable law, whichever is less, determined and compounded daily from the date due until the date paid. Customer will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Pandium to collect any amount that is not paid when due. Amounts due from Customer under this Agreement may not be withheld or offset by Customer against amounts due to Customer for any reason. All amounts payable under this Agreement are denominated in United States dollars, will be paid in United States dollars, and are nonrefundable.
B. Taxes. Other than federal and state net income taxes imposed on Pandium, Customer will bear all taxes, duties, and other governmental charges resulting from the Agreement or provide a tax exempt certificate.
5. Term and Termination
A. Term of the Agreement. The term of the Agreement will commence on the Effective Date and will continue until terminated (the “Term”). Either party may terminate the Agreement for convenience if no Order Forms or SOWs are in effect with 30 days’ prior written notice to the other party.
B. Notice of Material Breach or Default. Pandium may terminate this Agreement and any Order Forms or SOWs immediately effective upon notice thereof if Customer breaches Section 2(G). In addition to the foregoing, either party may terminate the Agreement or an individual Order Form or SOW, in whole or in part, for any other material breach if the other party does not cure its material breach within 30 days of receiving written notice of the material breach or default (which notice must include a statement of the facts relating to the material breach or default, the provisions of the Agreement that are in material breach or default, the action required to cure the material breach or default, and the non-defaulting party’s intention to terminate the Agreement or the applicable Order Form or SOW if the material breach or default is not cured within 30 days after the defaulting party’s receipt of that notice or any later date as may be specified in the notice). Without limiting the foregoing, any failure by Customer to timely pay to Pandium any amounts owing under an Order Form or SOW will constitute a material breach of the Agreement and the applicable Order Form or SOW. In addition to the rights provided in this Section 5, if Customer fails to timely pay any fees, Pandium may, without limitation to any of its other rights or remedies, suspend access to the Pandium Platform until it receives all amounts due.
C. Termination for Insolvency. Pandium may terminate the Agreement, effective immediately upon written notice, if Customer files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property
D. Effect of Termination. Upon the termination of the Agreement, an Order Form or an SOW: (i) all rights and licenses granted by Pandium to Customer under the Agreement or the applicable terminated Order Form or SOW will terminate; (ii) Customer will pay to Pandium any fees, reimbursable expenses, compensation, or other amounts that have accrued prior to the effective date of the termination; (iii) Pandium will have no obligation to perform under the terminated Order Form, as applicable, after the effective date of termination; and (iv) the parties’ respective rights and obligations under Sections 1, 2(G) – 2(K), 3(B), 5(D), 6(B), 7, and 8 of the Agreement will survive. If an Order Form or an SOW is terminated, the Agreement and any other Order Forms or SOWs will remain in effect. If the Agreement is terminated, all Order Forms and SOWs will automatically terminate as well.
6. Warranties and Disclaimer.
A. Mutual Warranties. Each party represents and warrants to the other that: (a) the Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against the executing party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with the execution, delivery, or performance of the Agreement by the executing party; and (c) the execution, delivery, and performance of the Agreement by the executing party does not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.
B. Disclaimer. EXCEPT FOR THE LIMITED WARRANTIES DESCRIBED IN SECTION 6(A), PANDIUM MAKES NO OTHER EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE PANDIUM PLATFORM, APIs, DOCUMENTATION, SUPPORT SERVICES, PROFESSIONAL SERVICES, OR OTHERWISE AND SPECIFICALLY DISCLAIMS ALL IMPLIED AND STATUTORY WARRANTIES INCLUDING THE IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, SATISFACTORY QUALITY, AND FITNESS FOR A PARTICULAR PURPOSE AS WELL AS ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. IF THAT DISCLAIMER IS NOT PERMITTED BY LAW, THE DURATION OF ANY IMPLIED WARRANTIES IS LIMITED TO 90 DAYS FROM THE DATE OF DELIVERY. IN ADDITION, PANDIUM DOES NOT WARRANT THAT THE PANDIUM PLATFORM, APIs, DOCUMENTATION, SUPPORT SERVICES, OR PROFESSIONAL SERVICES WILL SATISFY CUSTOMER’S REQUIREMENTS, IS WITHOUT DEFECT OR ERROR, OR THAT THE OPERATION OF THE PANDIUM PLATFORM OR APIs WILL BE UNINTERRUPTED. BECAUSE IT MAY NOT BE POSSIBLE FOR PANDIUM TO KNOW THE EXACT PURPOSES FOR WHICH CUSTOMER ACQUIRED THE PANDIUM PLATFORM, APIs, OR ANY RELATED SERVICES UNDER THE AGREEMENT, CUSTOMER ASSUMES FULL RESPONSIBILITY FOR ITS USE AND THE RESULTS OF THAT USE. No oral or written information given by Pandium, its agents, or employees will create any additional warranty. No modification or addition to the limited warranties set forth in the Agreement is authorized unless it is set forth in writing, references the Agreement, and is signed on behalf of Pandium by a corporate officer. This exclusion also applies to any of Pandium's subcontractors, suppliers, authorized service providers, and program developers. Some jurisdictions do not allow the exclusion or limitation of warranties, so that limitation or exclusion may not apply to Customer.
7. Limitations of Liability.
A. Disclaimer of Indirect Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, PANDIUM WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CUSTOMER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF PANDIUM IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
B. Cap on Liability. UNDER NO CIRCUMSTANCES WILL PANDIUM’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO PANDIUM DURING THE 6 MONTHS IMMEDIATELY PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY PANDIUM TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THE AGREEMENT. THE LIMITATIONS IN THIS SECTION 7 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
A. Export. Customer will comply with all applicable laws, rules and regulations in connection with Customer’s activities under the Agreement, including but not limited to export and import laws. Customer acknowledges that it is Customer’s responsibility to obtain any required licenses to export and reexport the Pandium Platform. The Pandium Platform, including technical data, is subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Customer represents and warrants that the Pandium Platform is not being and will not be acquired for, shipped, transferred, or reexported, directly or indirectly, to proscribed or embargoed countries or their nationals and persons on the Table of Denial Orders, the Entity List or the List of Specifically Designated Nationals, unless specifically authorized by the U.S. Government for those purposes.
B. Governing Law. The Agreement will be governed by the laws of the United States and the State of New York without regard to the conflict of laws provisions of any state or jurisdiction that would result in the application of the laws of another jurisdiction. Any litigation arising from the Agreement will be brought exclusively in the state or federal courts located in Manhattan County, New York. The United Nations Convention on Contracts for the International Sale of Goods is specifically disclaimed.
C. Assignment. Customer may not assign or otherwise transfer any of Customer’s obligations or performance, the Agreement or any licenses granted or obligations set forth in the Agreement, in each case whether voluntarily, involuntarily, by operation of law, merger, a sale of all or substantially all of Customer’s assets, business reorganization or otherwise, without Pandium's prior written consent and any attempted assignment by Customer will be null and void. Pandium may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under the Agreement without Customer’s consent. The Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
D. Severability. In the event that any provision of the Agreement is found to be unenforceable, that provision will be deemed modified to the extent necessary to allow enforceability of the provision as so limited, being intended that Pandium will receive the benefit contemplated herein to the fullest extent permitted by law, and the validity and enforceability of the remaining provisions will not be affected thereby. If any material limitation or restriction on the use of the Pandium Platform or Documentation under the Agreement is found to be illegal, unenforceable, or invalid, Customer’s right to use the Pandium Platform or Documentation will immediately terminate.
E. Waiver. Failure of either party to require performance by the other party of any provision hereof will not affect the full right to require that performance at any time thereafter; nor will the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself.
F. Entire Agreement. The Agreement, including all SOWs and Order Forms, is the final and complete expression of the agreement between the parties regarding the Customer’s use of the Pandium Platform, APIs, Documentation, and Professional Services. The Agreement supersedes, and the terms of the Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into the Agreement, except that the Agreement does not supersede any prior nondisclosure or comparable agreement between the parties executed prior to the Agreement being executed. No employee, agent, or other representative of Pandium or any vendor, reseller, or other person has any authority to bind Pandium with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in the Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of the Agreement. The Agreement may be changed only by a written agreement signed by an authorized agent of the party against whom enforcement is sought. Pandium will not be bound by, and specifically objects to, any term, condition or other provision that is different from or in addition to the Agreement (whether or not it would materially alter the Agreement) that is proffered by Customer in any purchase order, receipt, acceptance, confirmation, correspondence, or otherwise, unless Pandium specifically agrees to that provision in writing and signed by an authorized agent of Pandium.
G. Export; U.S. Government Restricted Rights. Customer may not remove or export from the United States or allow the export or re-export of the Pandium Platform, APIs, or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, access to the Pandium Platform, APIs, provision of Professional Services, and Documentation are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
H. Relationship. Pandium will be and act as an independent contractor (and not as the agent or representative of Customer) in the performance of the Agreement. The Agreement will not be interpreted or construed as: (i) creating or evidencing any association, joint venture, partnership, or franchise between the parties; (ii) imposing any partnership or franchise obligation or liability on either party; or (iii) prohibiting or restricting Pandium’s performance of any services for any third party or the provision of products to any third party. Customer must not represent to anyone that Customer is an agent of Pandium or is otherwise authorized to bind or commit Pandium in any way without Pandium’s prior authorization.
I. Subcontractors. Pandium may use a subcontractor or other third party to perform its duties under the Agreement so long as Pandium remains responsible for all of its obligations under the Agreement.
J. Notices. Any notice required or permitted to be given in accordance with the Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth on the applicable Order Form or SOW and with the appropriate postage affixed. Either party may change its address for receipt of notice by notice to the other party in writing (which may include email). Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier.
K. Force Majeure. Pandium will not be liable for, or be considered to be in breach of or default under the Agreement on account of, any delay or failure to perform as required by the Agreement as a result of any cause or condition beyond Pandium’s reasonable control, so long as Pandium uses all commercially reasonable efforts to avoid or remove those causes of nonperformance.
L. Interpretation. Section headings are used in the Agreement for convenience of reference only and will not affect the meaning of any provision of the Agreement. For purposes of the Agreement, (i) the words “include,” “includes” and “including” will be deemed to be followed by the words “without limitation;” (ii) the words “such as”, “for example” “e.g.” and any derivatives of those words will mean by way of example and the items that follow these words will not be deemed an exhaustive list; and(iii) the word “or” is used in the inclusive sense of “and/or” and the terms “or,” “any,” and “either” are not exclusive. No ambiguity will be construed against any party based on a claim that the party drafted the language.
DATA PROCESSING ADDENDUM
This Data Processing Addendum (“Addendum”) forms part of the Agreement between Customer and Pandium.
1. Subject Matter and Duration.
A. Subject Matter. This Addendum sets forth Pandium’s obligations with respect to the Processing of Customer Personal Data under the Agreement. All capitalized terms that are not expressly defined in this Addendum will have the meanings given to them in the Agreement. If and to the extent language in this Addendum conflicts with the Agreement, this Addendum shall control.
B. Duration and Survival. This Addendum will become legally binding upon the effective date of the Agreement. Pandium will Process Customer Personal Data until the relationship terminates as specified in the Agreement. Pandium’s obligations and Customer’s rights under this Addendum will continue in effect so long as Pandium Processes Customer Personal Data.
C. Definitions. For the purposes of this Addendum, the following terms and those defined within the body of this Addendum apply.
i. “Customer Personal Data” means Personal Data in Customer Data Processed by Pandium on behalf of Customer.
ii. “Data Protection Laws” means all applicable data privacy, data protection, and cybersecurity laws, rules and regulations to which the Customer Personal Data are subject. “Data Protection Laws” shall include, but not be limited to, the California Consumer Privacy Act of 2018 (“CCPA”) after its effective date on January 1, 2020, and the EU General Data Protection Regulation 2016/679 (“GDPR”).
iii. “Personal Data” shall have the meaning assigned to the terms “personal data” and/or “personal information” under Data Protection Laws.
iv. “Process” or “Processing” means any operation or set of operations which is performed on Personal Data or sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination, or otherwise making available, alignment or combination, restriction, erasure, or destruction.
v. “Security Incident(s)” means the breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Customer Personal Data attributable to Pandium.
vi. “Services” means the services to be provided by Pandium to Customer under the Agreement.
vii. “Third Party(ies)” means Pandium’s authorized contractors, agents, vendors and third-party service providers (i.e., sub-processors) that Process Customer Personal Data.
2. Data Use and Processing.
A. Documented Instructions. Pandium and its Third Parties shall Process Customer Personal Data only in accordance with the documented instructions of Customer or as specifically authorized by this Addendum, the Agreement, or any applicable SOW. Pandium will, unless legally prohibited from doing so, inform Customer in writing if it reasonably believes that there is a conflict between Customer’s instructions and applicable law or otherwise seeks to Process Customer Personal Data in a manner that is inconsistent with Customer’s instructions.
B. Pandium and Third Party Compliance. Pandium agrees to enter into a written agreement with Third Parties regarding such Third Parties’ Processing of Customer Personal Data that imposes on such Third Parties data protection and security requirements for Customer Personal Data that are consistent with the Agreement.
C. Right to Object to Third Parties. Where required by Data Protection Laws, Pandium will notify Customer via email prior to engaging any new Third Parties that Process Customer Personal Data and allow Customer ten (10) days to object. If Customer has legitimate objections to the appointment of any new Third Party, the parties will work together in good faith to resolve the grounds for the objection.
D. Confidentiality. Any person authorized to Process Customer Personal Data must contractually agree to maintain the confidentiality of such information or be under an appropriate statutory obligation of confidentiality.
E. Personal Data Inquiries and Requests. Where required by Data Protection Laws, Pandium agrees to provide reasonable assistance and comply with reasonable instructions from Customer related to any requests from individuals exercising their rights in Customer Personal Data granted to them under Data Protection Laws.
F. Data Protection Impact Assessment and Prior Consultation. Where required by Data Protection Laws, Pandium agrees to provide reasonable assistance at Customer’s expense to Customer where, in Customer’s judgment, the type of Processing performed by Pandium requires a data protection impact assessment and/or prior consultation with the relevant data protection authorities.
G. Demonstrable Compliance. Pandium agrees to provide Customer with information necessary to demonstrate compliance with this Addendum upon reasonable request.
3. Cross Border Transfers of Personal Data.
A. Cross-Border Transfers of Personal Data. Customer authorizes Pandium and its Third Parties to transfer Customer Personal Data across international borders, including from the European Economic Area to the United States.
B. Standard Contractual Clauses. Where required, Customer and Pandium will use the European Commission Decision C(2010)593 Standard Contractual Clauses for Controllers to Processors (“Model Clauses”) to support the transfer of Customer Personal Data, the terms of which are herein incorporated by reference. The parties agree that: (i) the audits described in Clause 5(f) and Clause 12(2) of the Model Clauses shall be carried out in accordance with Section 7 of this Addendum; (ii) pursuant to clause 5(h) of the Model Clauses, Pandium may engage new Third-Parties in accordance with Section 3(c) of this Addendum; (iii) the subprocessor agreements referenced in Clause 5(j) and certification of deletion referenced in Clause 12(1) of the Model Clauses shall be provided by Pandium only upon Customer’s written request; and (iv) the optional clauses are expressly not included. Each party’s signature to the Order Form shall be considered a signature to the Model Clauses. If required by the laws or regulatory procedures of any jurisdiction, the parties shall execute or re-execute the Model Clauses as separate documents.
4. Information Security.
A. Technical and Organizational Measures. Pandium agrees to implement appropriate technical and organizational measures designed to protect Customer Personal Data consistent with Data Protection Laws.
B. Security Incidents.
i. Notice. Upon becoming aware of a Security Incident, Pandium agrees to provide written notice without undue delay and within the time frame required under Data Protection Laws to Customer’s primary contact email address provided on the Order Form. Where possible, such notice will include all available details required under Data Protection Laws for Customer to comply with its own notification obligations to regulatory authorities and/or individuals affected by the Security Incident.
i. Audit Terms. Where Data Protection Laws afford Customer an audit right, Customer (or its appointed representative) may, not more than once annually, carry out an inspection of Pandium’s policies, procedures, and records with respect to the Processing of Customer Personal Data by having Pandium complete a data protection questionnaire of reasonable length.
5. Data Deletion.
A. Data Deletion. At the expiry or termination of the Agreement, Pandium will, at Customer’s option and request, delete or return all Customer Personal Data (excluding any back-up or archival copies which shall be deleted in accordance with Pandium’s data retention schedule), except where Pandium is required to retain copies under applicable laws, in which case Pandium will isolate and protect that Customer Personal Data from any further Processing except to the extent required by applicable laws.
Subject Matter. The subject matter of the Processing is Services pursuant to the Agreement.
Duration. The Processing will continue until the expiration or termination of the Agreement.
Categories of Data Subjects. Data subjects whose Customer Personal Data will be Processed pursuant to the Agreement.
Nature and Purpose of Processing. The nature and the purpose of the Processing of Customer Personal Data by Pandium is the performance of the Services.
Types of Customer Personal Data. Customer Personal Data that is Processed pursuant to the Agreement.