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SaaS Terms & Conditions

TERMS AND CONDITIONS

These Terms (“Terms”) describe your rights and responsibilities when using the Subscription Services (defined below). If you are a Subscriber, these Terms will apply to your access and use of the Subscription Service, whether that access and use is by you or your affiliates, employees, contractors and others that you permit to use the Subscription Service or your Authorized Users. If you have been invited to use the Service by a Subscriber, the User Terms (“User Terms”) govern your access to and use of the Service. 


These Terms form a contract between Subscriber and Pani Energy Inc. (Pani, “we”, “us” and “our”). “Subscriber” is the company, organization or other legal entity described in the Order Form (also referred to as “Subscriber”, “you” and “your”).  By completing the Order Form, clicking a box indicating your acceptance of these Terms, accessing or using the Subscription Service or allowing any Authorized User to access or use the Subscription Service, you agree to be bound by these Terms. If you enter into these Terms on behalf of a company, organization or other legal entity, you represent and warrant that you have the authority to bind that entity to these Terms. These Terms, any Order Form entered between the Parties from time to time, and any documents, policies and procedures incorporated herein by reference, all as may be amended from time to time as permitted herein, are collectively referred to as the “Agreement”.  This Agreement will become effective on the date that you accept the Terms or access or use the Services (“Effective Date”).  Pani reserves the right to reject any Order Form and prevent access to the Services.


If you are not of the age of majority in your jurisdiction, do not agree with these Terms or otherwise do not have the authority to enter into these Terms, you must not access or use the Subscription Service.


1.    SUBSCRIPTIONS AND LICENCES
1.1    Subscriber subscribes for and will pay the Fees for, and Pani will provide, the Subscription Services and other Services to Subscriber and/or to each Subscriber Affiliate as set out in each Order Form (each, a “Subscription”), as may be amended as permitted hereunder. The Order Form may offer different types of Subscriptions and plans related to those Subscriptions (“Subscription Plans”).  
1.2    Subject to the terms and conditions of this Agreement, including the restrictions set forth in Section 2, Pani grants to Subscriber a nonexclusive, non-transferable, worldwide, revocable right and license during the term of this Agreement to: (a) permit its Authorized Users to access and use the Software via each Subscription Service for which Subscriber has a valid and current Subscription pursuant to an Order Form for Subscriber’s Internal Use;  (b) permit the Authorized Users of Subscriber Affiliates to access and use the Software via the Subscription Service for which Subscriber has a valid and current Subscription pursuant to an Order Form for the Internal Use of the Subscriber Affiliates and/or Subscriber, as applicable, provided that such Subscriber Affiliates comply with the terms and conditions of this Agreement applicable to Subscriber’s access and use of the Software via each Subscription Service.  Subscriber acknowledges each Authorized User will be required to create an individual user account and password and accept the User Terms to obtain access to the Services.  Authorized User accounts are non-transferable and, as such, Subscriber shall ensure that Authorized Users do not share user accounts or passwords.  Subscriber is responsible for ensuring all Authorized Users comply with these Terms and the User Terms. Further restrictions on the Subscription, related to the specific Subscription Plan selected, are set out in the Order Form.    
1.3    The initial term of each Subscription will commence on the effective date of the applicable Order Form and run for a period of 12 months (the “Initial Term”), unless otherwise specified in an applicable Order Form, including with respect to a subscription for a Pilot Period.  Subject to the termination provisions in Section 13 of this Agreement, each Subscription will automatically renew for an unlimited number of additional 12 month terms (each such 12 month term being a “Renewal Term” and collectively, the “Renewal Terms”).  UNLESS OTHERWISE SPECIFIED IN AN APPLICABLE ORDER FORM AND SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, PANI WILL PROVIDE THE SUBSCRIPTION SERVICE TO SUBSCRIBER, AND SUBSCRIBER WILL RECEIVE AND PAY FOR THE SUBSCRIPTION SERVICE, FOR A MINIMUM OF 12 MONTHS.
1.4    Pani may agree to provide the Subscription Services for a pilot period as set out in the Order Form (“Pilot Period”).  If a Pilot Period is provided, then, notwithstanding anything else in these Terms, in connection with such Pilot Period (1) no fees will apply, except for any pilot use fee specified in the Order Form, (2) the Services are provided “AS IS” and no warranty obligations of Pani, set out in these Terms, will apply, and (3) Subscriber may terminate this Agreement and all of its rights hereunder by providing Pani written notice thereof no less than 10 days prior to the end of the Pilot Period; otherwise, this Agreement shall continue in effect for the Initial Term (subject to earlier termination as provided in these Terms).  

 

2.    RESTRICTIONS AND RESPONSIBILITIES
2.1    The licenses granted in Section 1.2 are explicitly conditioned on Subscriber’s adherence to the following restrictions and compliance with its responsibilities as set forth in Section 2.2, below.
2.2    Except as expressly permitted in this Agreement or with the prior written approval of Pani, the Subscriber may not (and may not permit or cause any Subscriber Affiliate or Authorized Users to) (i) access or use any Subscription for any purposes other than the Internal Use of Subscriber or Subscriber Affiliates; (ii) assign, sublicense, rent, lease, grant a security interest in, or otherwise transfer any rights in the Software; (iii) access or use the Software and Services other than as permitted hereunder in conjunction with valid and current Subscription Services;  (iv) access or use the Software or Services in a manner that contravenes any provisions of this Agreement or applicable statutes, laws, ordinances, or regulations; (v) allow any third party to have access to the Software or Services, other than Subscriber Affiliates and Authorized Users; (vi) copy, distribute, modify, translate, reverse engineer, decompile, dissemble, upload or post the Software on a network, bulletin board, intranet, extranet or web site, create derivative works based on the Software, or merge the Software into any other software; (vii) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Software; or (viii) introduce Malicious Software into the Services.  Subscriber shall require all Authorized Users to comply with the terms of this Agreement.

 

3.    FEES AND PAYMENT  
3.1    Subscriber shall pay Pani the fees specified by Pani ("Fees") for the Services in the Order Form and for the selected Subscription Plan.  In the Order Form, Subscriber shall make payments of Fees by third party payment service as designated in the Order Form.  Pani may agree to invoice Subscribers in certain cases.  If Subscriber pays by third party payment service, Subscriber shall provide Pani with the required account information to allow Pani to charge the applicable account.  These charges will be applied to Subscriber’s account in advance of the period in which the Services are to be provided or made available to Subscriber.  For example, for a monthly billing cycle, Pani shall charge Subscriber’s account at the beginning of the month for the entire month.  By providing Pani with Subscriber’s payment account information, Subscriber authorizes Pani to charge the applicable account for the Services.  All payments shall be made in Canadian dollars.
3.2    If Pani agrees to proceed by way of invoicing, all Fees will be invoiced in advance, unless otherwise specified in an Order Form.  If payments are to be made after Services are rendered, Subscriber agrees to pay, within 30 days following receipt of the invoice.
3.3    Pani may adjust the Fees charged to the Subscriber during any Renewal Term by providing a notice of such adjustment in Fees.
3.4    Other than as expressly set out in this Agreement, all Fees paid under this Agreement are non-refundable.
3.5    All Fees are exclusive of and Subscriber will pay all applicable federal, provincial, state, and local sales, use, value added, surcharges, excise, franchise, property, gross receipts, license, privilege, and any other taxes, duties, levies or fees (collectively, “Taxes”) assessable with respect to the Services.  If any authority imposes any Taxes, excluding those based on Pani’s net income, upon any transaction under this Agreement, Subscriber agrees to pay that amount as specified in an invoice or to supply such documentation as Pani may reasonably require to confirm an exemption from the payment of such Taxes. 
3.6    Subscriber shall maintain the accuracy, completeness and effectiveness of Subscriber’s billing information (including without limitation ensuring an active account with sufficient credit to make payments of all amounts due is authorized and included in the billing information) and shall immediately make appropriate changes to Subscriber’s account of any changes to such account or other billing information. Should Subscriber fail to do so, Pani shall have the right to immediately suspend, terminate or cancel Subscriber’s access (and the access of Authorized Users) to the Services without notice to Subscriber and shall have no liability to Subscriber or any third party for doing so.  If any Fee becomes delinquent and continues delinquent for more than 30 days, Pani may issue a notice to the Subscriber of such delinquency (a “Fee Delinquency Notice”). At Pani’s option, all or any part of the Services provided under this Agreement may be withheld until Subscriber has paid all Fees specified in a Fee Delinquency Notice.  This Agreement may be terminated if any such delinquent Fees as set out in the Fee Delinquency Notice remain unpaid for a further 30 days after the receipt by the Subscriber of a Fee Delinquency Notice. Reinstatement of the Service(s) following any such suspension or termination will be on such terms, and subject to guarantees, reinstatement fees and/or security deposits, as Pani may determine in its sole discretion, acting reasonably.  
3.7    All amounts remaining unpaid when due will bear interest at the rate of 1.5% per month compounded monthly until paid in full.

 

4.    IMPLEMENTATION
4.1    Implementation of the Subscription Services will start as soon as commercially reasonably possible following the effective date of the applicable Order Form, subject to both Parties meeting their obligations described below.  Pani’s obligation to carry out implementation will be conditional on Subscriber paying all Fees owing as of the effective date of the applicable Order Form.
4.2    In addition to any obligations in an applicable Order Form, Subscriber will be responsible for the following:
a.    Subscriber will complete configuring network connections to connect to the Software with assistance from Pani and begin using the Software in a production environment (“Go Live Date”);
b.    before and during implementation, Subscriber will gather and submit any business information required by Pani to implement the Subscription Services, including, Plant Information.; and
c.    Subscriber is solely responsible for obtaining and securing all rights necessary to use any Subscriber Material in conjunction with the Subscription Service.

 

5.    SERVICE DELIVERY
5.1    Subscriber does hereby grant Pani a worldwide, royalty-free, non-exclusive license to access, view, transmit, store, process or otherwise Subscriber Materials as reasonably required to provide the Services hereunder.  Subscriber will cooperate with Pani, on a commercially reasonable basis and upon request, if Pani should require access to Subscriber’s personnel, facilities, information, data, computers, computer software or additional information to perform its obligations under this Agreement.
5.2    Subscriber will comply with and access, and Pani will perform, the Services according to applicable policies, terms of use and legal notices referenced herein, in any Order Form attached to or linked to from this Agreement or otherwise provided to Subscriber, as Pani may in its sole discretion, adopt or change from time to time.  Subscriber expressly agrees that Subscriber’s ongoing access and use of the Services will be deemed to be Subscriber’s agreement to such modifications.  
5.3    Subscriber agrees to notify Pani immediately if Subscriber suspects the Subscription Services are or may become unavailable to Subscriber due to any reason whatsoever outside of Pani’s control including but not limited to Malicious Software, malfunction or failure of server, hardware, internet service or any other protocol. 
5.4    The Subscriber acknowledges that the Services may be modified or upgraded by Pani from time to time in its sole discretion.  
5.5    Pani reserves the right, in its sole discretion, to temporarily or permanently disable or discontinue providing any specific functionality within a Subscription Service, provided that the core functionalities of such Subscription Service are not rendered inoperable, by providing the Subscriber with notification in writing.
5.6    Subscriber agrees that Pani will not be liable to Subscriber, any Subscriber Affiliate, or any Authorized User or any other third party for any modifications or disabling or discontinuance of all or any part of the Services done in accordance with this Agreement.   

 

6.    PRIVACY AND SUBSCRIBER MATERIALS
6.1    Pani agrees that all Subscriber Materials stored on the Subscription Service are and remain the property of Subscriber and it will not disclose to any third party, other than as necessary to provide the Services, any personal information of any Authorized User or that identifies the Subscriber or its business.  
6.2    Pani will comply with privacy and data protection laws applicable to the storing and transmitting of personal information received from or in relation to Subscriber. Pani will also comply with its Privacy Policy.  
6.3    Subject to Pani complying with Sections 6.1 and 6.2 above, Subscriber authorizes Pani to collect, use and otherwise deal with all Subscriber Materials stored by Pani as part of the Subscription Service or otherwise received by Pani from Subscriber or Authorized Users to create aggregated, anonymized,  general information (including databases, reports, compilations or other versions of such information) and to use such aggregated, anonymized,  general information in such a manner as Pani may determine, including without limitation, for case studies.  Subscriber is solely responsible for the quality, integrity, legality, reliability and appropriateness of the Subscriber Materials and for obtaining all rights, authorizations and consents required by Pani to provide the Subscription Service to Subscriber and otherwise process the Subscriber Materials, including rights in and to the Subscriber Materials from Authorized Users and others.
6.4    Notwithstanding any provision to the contrary herein, Subscriber agrees that all aggregated, anonymized, general information (including any databases, reports, compilations or other versions of such information) collected and created by Pani is and will remain the exclusive property of Pani as Pani Generated Data.  Subscriber is granted a limited, non-exclusive and perpetual license to use the Pani Generated Data regarding the Plant for its Internal Use.
6.5    Subscriber Input Data, including Plant Information, may be pushed to Pani through an API or third party hardware (“Data Connection Point”).  Pani makes no representation and provides no warranty regarding the security of the Data Connection Point.  Any Subscriber Input Data and Plant Information provided to Pani through the Data Connection Point is provided at Subscriber’s own risk.

 

7.    HARDWARE, SUPPORT, AND TRAINING
7.1    Subscriber acknowledges and agrees that Pani will not be responsible for any Losses incurred by Subscriber, Subscriber Affiliates or their Authorized Users in connection with the Hardware except to the extent arising from the acts or omissions of Pani.
7.2    Subscriber will have access to any Documentation.  Subscriber may provide support contact information to Subscriber, which may include e-mail or chat support.  
7.3    Pani may make available to Subscriber training sessions for such Fees and on such terms and conditions as Pani may determine.    

 

8.    OWNERSHIP AND INTELLECTUAL PROPERTY
8.1    All right, title and interest in and to the Software, the Documentation, the Pani Pre-Existing Data and the Pani Generated Data and any copies thereof, and all documentation, code and logic which describes and/or comprises the Software, Documentation and related Services are and will at all times remain the sole property of Pani or its licensors, including all ownership rights to patents, copyrights, trademarks, trade names, goodwill, trade secrets and other intellectual property rights (collectively, “Intellectual Property”) in connection therewith.  Subscriber’s right to use the Software and Documentation is conditional upon and limited by the terms and conditions of this Agreement.  No modification by the Subscriber of the Software or any part thereof will in any way reduce or eliminate Pani’s ownership rights in and to the Software and its components.
8.2    Pani or its licensors owns all Intellectual Property rights in the Software and Documentation as delivered.  Pani further owns the Pani Pre-Existing Data and the Pani Generated Data.  If the Subscriber requests Subscriber-specific customizations or alterations or customiz