Effective Date: March 12, 2026

TERMS OF SERVICE

These Terms of Service (this “Agreement”) is entered into as of the date Customer accepts these terms or first accesses or uses the Services (the “Effective Date”) by and between BigPanda, Inc., a Delaware corporation, and its subsidiaries, as applicable, with its principal place of business at 555 Twin Dolphin Drive, Redwood City, CA 94065 (“BigPanda”), and the entity or individual accepting these terms (“Customer”). By accessing or using the Services, Customer agrees to be bound by this Agreement. If Customer does not agree to these terms, Customer may not access or use the Services. This Agreement governs the access and use by Customer of BigPanda’s software-as-a-service features and functionality (the “SaaS”), as well as ancillary services such as implementation support to configure and enable the transfer of data from the Customer’s IT environment (“Deployment Assistance”), as well as training and on-going support of the Services (“Support”), collectively (“Services”).

This Agreement is incorporated by reference into any current or future order form(s) for Services (collectively, “Order”) executed by Customer. Each Order will specify the service period (“Subscription Term”). Unless otherwise stated in an Order, all Subscription Terms shall auto-renew for the same length of initial service period unless otherwise terminated in accordance with this Agreement.

BigPanda reserves the right to update, modify, or amend this Agreement at any time by posting the revised terms on its website. Unless otherwise specified, changes will become effective thirty (30) days after posting; provided, however, that changes required to comply with applicable law or to address security vulnerabilities may take effect immediately upon posting. Customer’s continued use of the Services after any changes become effective constitutes Customer’s acceptance of such changes.

1.0 Term.

1.1. This Agreement shall commence on the Effective Date and continue six (6) months after the expiration or termination of the last Order unless otherwise terminating according to this Agreement.

2.0 SaaS.

2.1. During the Subscription Term BigPanda shall provide the SaaS as identified in the applicable Order. The SaaS shall consist of third-party software (“Third-Party Software”), as well as third-party processors to assist in the performance of services, including data storage, processing, and transmission. Except for any notice requirements under applicable law or BigPanda’s contractual obligations within its Data Processing Addendum, BigPanda reserves the right to change, replace, or discontinue any Third-Party Software or third-party processor as needed to ensure SaaS performance, functionality or compliance with legal requirements.

2.2. Subject to the terms and conditions of this Agreement, BigPanda hereby grants to Customer a non-exclusive, non-transferable right to access and use the SaaS during the term as agreed in the applicable Order(s), in accordance with then-current documentation, docs.bigpanda.io, (“Documentation”) and limited to Customer’s internal and lawful business purposes.

3.0 Restrictions of Use for SaaS.

3.1. Customer agrees not to attempt to, nor allow any third party to: (i) copy or make derivative works of the SaaS, expand the rights of access or use beyond the Order, or make the SaaS available to any third party via sublicense, rent service bureau or time sharing basis; (ii) decompile, reverse engineer, or disassemble the SaaS or otherwise attempt to reconstruct or discover any source code, underlying ideas or algorithms of the SaaS; (iii) disclose or publish, without BigPanda’s express prior written consent, performance or capacity statistics or the results of any benchmark test performed on the SaaS; (iv) use the SaaS to develop a competitive product offering, promote or support any product or service that is competitive with the SaaS; (v) attempt to gain unauthorized access to the SaaS, including access to other BigPanda customers’ data; (vi) remove any identification, patent, trademark, copyright, or other notice from the SaaS; (vii) interfere with or disrupt the integrity or performance of the SaaS, or unreasonably burden the infrastructure utilized by BigPanda to deliver the SaaS; (viii) use the SaaS including the transmission of Customer Data, in any manner that violates any law, rule, regulation or any other legal or regulatory requirement imposed by any regulatory or government agency or political subdivision, whether federal, state, local, or foreign; or (ix) otherwise use SaaS other than as specified in this Agreement, Order or Documentation.

4.0 Beta Releases & Service Enhancements.

4.1. As part of our commitment to continuous improvement and innovation, we may offer certain customers access to beta releases of new features or functionalities. Beta releases allow customers to explore and provide feedback on these enhancements before they are fully released. Beta releases are still in development, may contain bugs and will likely undergo modification without notice. Beta releases are provided on an “as-is” basis, with no warranties, guarantees of performance, support, or future availability.

4.2. BigPanda may make changes to the SaaS, which can include enhancements, updates to infrastructure, or adjustments to security measures. In some cases, this process may involve sunsetting certain features that are outdated or underused, allowing us to focus our resources on features that provide greater value and align with industry standards. When material changes, including sunsetting of features, are necessary, BigPanda will provide advance notice. For clarity, if any modifications materially reduce the core functionality of the SaaS, as determined by BigPanda in its reasonable discretion, such reduction will entitle the Customer to a pro-rata refund of any prepaid unused fees associated with the lost functionality; provided, however, that removal or modification of features that are deprecated, underutilized, or replaced with substantially equivalent functionality shall not constitute a material reduction.

5.0 Integration of Customer’s Third-Party Applications & Platforms.

5.1. Services may support integrations with certain third-party applications and platforms (“Third-Party Services”), including inbound API data feeds from Customer’s monitoring tools or other data sources and outbound
integrations that require Customer to provide authentication credentials, API keys, or other access tokens. All integrations are enabled and used at Customer’s sole discretion and risk. Customer is solely responsible for the configuration, accuracy, completeness, and lawfulness of all data transmitted to the Services, and represents and warrants that it has obtained all necessary rights, consents, and authorizations to transmit such data and enable access to any Third-Party Service. By enabling any outbound integration, Customer authorizes BigPanda to access and interact with the applicable Third-Party Service on Customer’s behalf using the access methods provided, and assumes all responsibility for the security, management, and rotation of all authentication materials provided to BigPanda. Customer shall comply with applicable law and all terms, conditions, and restrictions of the applicable Third-Party Services provider in connection with any use of Third-Party Services. BigPanda shall have no obligation to validate, verify, or audit any data received from Customer or any authentication materials provided, nor any duty to review or assess the security, functionality, or legal compliance of any Third-Party Service. BigPanda disclaims all responsibility and liability for any acts, omissions, data processing, security practices, downtime, or service disruptions of any Third-Party Service, and for any unauthorized access resulting from Customer’s management of authentication materials. BigPanda does not guarantee continued availability of any integration and may disable integrations at any time without notice if required by applicable law or in response to a security issue. Customer agrees to indemnify, defend, and hold harmless BigPanda against any claim arising out of or relating to Customer’s use of any integration or Third-Party Service, including claims related to misuse of authentication materials, unauthorized access, or violation of Third-Party Service terms.

6.0 Deployment Assistance.

6.1. Deployment Assistance is provided to Customer to aid in the installation, configuration and implementation of Services. This may include, as applicable, deployment of software code, such as browser extensions or application plug-ins, (“Access Points”) that are installed within the Customer’s IT environment in support of the transfer of data between the Customer’s IT environment and the Services. The Access Points are and will remain the sole property of the BigPanda. Subject to the terms and conditions of this Agreement, BigPanda grants the Customer a non-exclusive, limited license to use, copy, prepare derivative works of, display, transmit, perform, and distribute the access points as may be necessary for the Customer to use their documented functionality, for the duration of the Subscription Term and to the limits of the scope described in the Documentation.

6.2. BigPanda may provide a statement of work (“SOW”) which describes the specifics of the Deployment Assistance. The SOW is not intended, nor shall it be construed, as a “work for hire” under applicable law. All work produced by BigPanda under a SOW shall remain the intellectual property of BigPanda, unless otherwise expressly assigned in writing. BigPanda retains all rights, title, and interest in and to the deliverables, including any underlying
technology, methodologies, or processes, subject only to the limited rights granted to Customer as outlined in this Agreement.

7.0 Support.

7.1. Support will be delivered by BigPanda in accordance with BigPanda’s then-current support terms, as they may be restated from time to time by BigPanda’s Service Level Agreement (“SLA”). The current version of the SLA is located at https://www.bigpanda.io/customer-support/ and is incorporated by reference. Any future changes to the SLA will not materially reduce support services from the current version as of the Effective Date of this Agreement.

7.2. Documentation and any other training materials regarding the Services may be accessed or, as applicable, licensed through the Subscription Term solely for the internal purposes and in support of the Services. Customer agrees that any Documentation and training materials are Confidential Information of BigPanda. Training, which may include, live support outside of the SLA, may be provided by BigPanda or any authorized reseller of Services.

8.0 Customer Data & System Data.

8.1. Customer is responsible for the types of any information, content, or data transmitted through the SaaS that originate by the Customer or on behalf of Customer through Third-Party Services (collectively, “Customer Data”).
Customer retains all ownership rights to Customer Data. Customer grants BigPanda a non-exclusive, worldwide, royalty-free, and limited license to use, process, store, reproduce, and transmit Customer Data solely to the extent necessary to provide, support, and improve the Services under this Agreement.

8.2. Customer represents and warrants to BigPanda that it has or will obtain all necessary consents, authorizations, and rights and provide all necessary notices and disclosures to provide Customer Data to BigPanda and for
BigPanda to use Customer Data in the performance of its obligations in accordance with the terms and conditions of this Agreement. Customer agrees to indemnify, defend and hold harmless BigPanda against any third-party claim arising out of or relating to BigPanda’s use of Customer Data. Customer shall have no indemnification obligation to the extent it is caused by BigPanda’s breach of this Agreement, gross negligence or violation of law.

8.3. Customer will not use the SaaS to store or process Highly Sensitive Information. “Highly Sensitive Information” means, for purposes of this Agreement: (1) “special categories of personal data,” “sensitive personal
information,” or “Sensitive Personal Data,” as defined under applicable data protection laws; (2) patient, medical, or other protected health information regulated by the Health Insurance Portability and Accountability Act (as amended and supplemented) (“HIPAA”); or (3) other information subject to additional protections or regulation under specific laws or regulations. BigPanda shall have no responsibility for any use of Highly Sensitive Information by Customer.

8.4. Any data and data elements (other than Customer Data) collected by the SaaS regarding the configuration, environment, usage, performance, vulnerabilities and security of the SaaS that may be used to generate
logs, statistics and reports regarding performance, availability, integrity and security of the SaaS is system data (“System Data”). System Data shall be owned by BigPanda and may be retained by BigPanda after the termination of this Agreement.

9.0 Data Protection Legislation.

9.1. The SaaS is not intended to process Personal Information (“PI”), as defined by applicable data privacy and protection laws, or if any PI is processed, such processing is expected to be minimal. Each party will comply with any applicable data privacy and protection laws and as necessary, will agree to supplemental privacy and security terms consistent with such applicable laws. To the extent PI is processed under the Agreement, the parties expressly agree to be bound by other terms and conditions that reflect their respective legal obligations with respect to PI, parties agree to the terms and conditions of the then-current Data Processing Addendum (“DPA”) at https://trust.bigpanda.io/item/dpa which are incorporated herein by reference. For the avoidance of doubt, any PI transferred from Customer to BigPanda under this Agreement is subject to the terms of the DPA and will be processed in compliance with applicable data privacy and protection laws.

10.0 De-identified Data & Feedback.

10.1. Customer grants to BigPanda a non-exclusive, non-transferable, worldwide, commercial, perpetual, irrevocable, royalty-free license to use de-identified data from Customer’s use of the BigPanda Services to: (i) provide and maintain SaaS; (ii) improve or offer new SaaS; (iii) measure performance of SaaS; or (iv) for any other lawful business purpose. For clarity, de-identified data, which may include metadata or aggregated data, used by BigPanda under this Section 10.1 will never identify the Customer, End User nor any individual.

10.2. To the extent that any Customer provides any suggestions, enhancement request, correction, ideas or other feedback regarding the SaaS, including without limitation any input, suggestions, or ideas relating to prompts, prompt structures, prompt optimization, or AI functionality (“Feedback”), Customer grants BigPanda a non-exclusive, worldwide, irrevocable, royalty-free license to reproduce, modify, create derivative works of, license, distribute and otherwise commercialize the Feedback as part of any of SaaS.

11.0 Use of Third-Party AI Models.

11.1. BigPanda may incorporate third-party large language models (“LLMs”) as part of its Services to enable certain functionalities, including but not limited to natural language processing, data analysis, and content generation. Customer acknowledges that these third-party LLMs are external to BigPanda’s direct control and BigPanda is working as an integrator and optimizing the functionality for Services. Customer may choose to contract directly with LLMs and integrate with BigPanda or utilize BigPanda’s instance. Customer acknowledges and agrees that all prompts, prompt templates, prompt chains, prompt engineering techniques, and methodologies used in connection with the Services (“Prompt IP”) are and shall remain the exclusive intellectual property of BigPanda. To the extent BigPanda collaborates with Customer to optimize, refine, or develop prompts, any resulting improvements, modifications, or new prompts shall be owned exclusively by BigPanda, and Customer hereby assigns to BigPanda all right, title, and interest in any such improvements. For clarity, Prompt IP excludes Customer Data and customer-specific variable values or field mappings that are purely operational configurations.

11.2. Customer acknowledges and agrees that any data inputted into the Services (including Customer Data) may be processed by third-party LLMs solely to perform the Services. Customer is responsible for ensuring that input data does not contain Highly Sensitive Information unless otherwise permitted, and that Customer has obtained all necessary rights and consents to provide such data. BigPanda will not retain or use input data for any purpose other than providing Services. Except as expressly set forth in a Custom Model SOW executed pursuant to Section 11.6, Customer Data is never used to train, retrain, or improve third party foundational models. Third-party LLMs process prompts and completions under enterprise Zero Data Retention terms, meaning such data is processed ephemerally in memory only and is not stored or used by the LLM provider to train or improve models.

11.3. Dependent on Customer feedback and cooperation, BigPanda will work with Customer to optimize any outputs generated by third-party LLMs (“AI Outputs”). As between the parties, Customer shall own all right, title, and interest in AI Outputs generated specifically from Customer Data or Customer’s use of the Services; provided, however, that such ownership excludes any BigPanda Proprietary Materials, underlying models, algorithms, methodologies, prompts, or other intellectual property of BigPanda or its licensors embedded in or used to generate such AI Outputs, all of which remain the exclusive property of BigPanda. AI Outputs are provided “as-is” without warranties of accuracy, completeness, or fitness for a particular purpose. BigPanda makes no guarantees regarding the accuracy or reliability of AI Outputs as the accuracy of any response is based upon the accuracy and completeness of data provided by Customer. Customer shall independently verify and validate any critical information derived from AI Outputs before relying upon it. AI Outputs may be subject to limitations, and BigPanda disclaims all liability for errors or unintended results from reliance on such outputs. Customer assumes sole responsibility for the use, distribution, and any downstream application of AI Outputs.

11.4. BigPanda shall not be liable for any damages arising from inaccuracies, limitations, or unintended consequences of using AI Outputs. This limitation includes but is not limited to any liability arising from misinterpretations, errors in processing, or application of AI Outputs. Customer assumes all responsibility for the use and reliance on AI Outputs and agrees that any claims arising from third-party LLMs shall be limited to the extent permitted by law.

11.5. BigPanda may offer AI-enabled automation features as part of the Services that can automatically execute certain actions based on AI analysis and recommendations (“Automation Features”). Automation Features are
disabled by default and will only be available if Customer explicitly enables them through the Services interface or as otherwise specified in an Order. Customer has sole discretion to enable, disable, configure, and define the scope of any Automation Features. Customer acknowledges and agrees that: (i) Automation Features are intended to assist, not replace, human decision-making and Customer retains full responsibility for reviewing, validating, and approving all automated actions before and after implementation; (ii) Customer is solely responsible for any and all consequences resulting from the use of Automation Features, including any actions taken by Customer’s systems, third-party systems, or downstream processes; (iii) automated actions are subject to Customer’s own authorization controls, system configurations, and access permissions, and BigPanda has no responsibility for actions that Customer’s systems permit or execute; and (iv) Customer shall maintain appropriate human oversight and intervention capabilities for all automated processes. BigPanda makes no representations or warranties regarding the accuracy, appropriateness, completeness, or results of any Automation Features, and Customer shall independently verify all automated recommendations and actions. BigPanda reserves the right to suspend or disable Automation Features at any time if BigPanda determines, in its sole discretion, that such action is necessary for security reasons, legal compliance, to prevent misuse, or to protect the integrity of the Services. Customer agrees to indemnify, defend, and hold harmless BigPanda against any third-party claims arising out of or relating to Customer’s use of Automation Features, including claims related to automated actions taken by or through Customer’s systems.

11.6. BigPanda may offer to develop, train, or fine-tune a machine learning model using Customer Data for Customer’s dedicated use (a “Custom Model”), as further described in a mutually executed SOW (each, a “Custom Model SOW”). Custom Model Services are not included in the standard Services and will only be provided if the parties execute a separate SOW. Except for the use of Customer Data to train the Custom Model, the terms and conditions of this Agreement shall apply to Custom Model Services and any Custom Model, except as expressly modified by a Custom Model SOW.

12.0 Security, Breach Notification & Business Continuity.

12.1. BigPanda will comply with the then current security standards for the SaaS found at https://trust.bigpanda.io/item/security-standards. BigPanda will, consistent with industry standard practices, implement and maintain applicable physical, administrative and technical safeguards: (a) to maintain the security and confidentiality of Customer Data; (b) to maintain the availability and integrity of Customer Data; and (c) to protect Customer Data from known or reasonably anticipated threats or hazards to its security, including accidental loss, unauthorized use, access, alteration or disclosure. Upon Customer’s written request (no more than once per twelve (12) month period), BigPanda will make available, via our Customer Trust Portal, to Customer BigPanda’s then-current third-party audit reports (e.g., SOC 2 Type II) and certifications relating to the security of the SaaS, subject to confidentiality obligations. If Customer reasonably determines that such reports are insufficient to verify BigPanda’s compliance with its security obligations under this Agreement, Customer may request additional information and the parties will work in good faith to address Customer’s concerns through supplemental documentation, written responses to security questionnaires, or other reasonable means as reasonably determined by the parties. Any audit findings or supplemental information provided shall be treated as BigPanda Confidential Information.

12.2. BigPanda will inform Customer without undue delay, and in any event within twenty-four (24) hours, upon confirmed discovery of any actual unauthorized access to, any unauthorized loss, use or disclosure of any Customer Data (a “Security Incident”). BigPanda will investigate the cause of the Security Incident and take reasonable steps to prevent further unauthorized access, loss, use or disclosure of Customer Data. BigPanda will reasonably cooperate with Customer in complying with its obligations under applicable law pertaining to responding to a Security Incident. BigPanda’s obligation to report or respond to a Security Incident under this Section is not an acknowledgement by BigPanda of any fault or liability with respect to the Security Incident.

12.3. BigPanda shall maintain a business continuity plan designed to minimize disruptions to the SaaS under this Agreement. In the event of a disruption, BigPanda will use all commercially reasonable measures to mitigate the
impact to Customer and will promptly inform the Customer of the expected timeline until resolution.

13.0 Limited Warranties and Disclaimers.

13.1. With respect to Services, Services shall conform in substantial conformance to the functionality as set forth in the applicable then-current Documentation.

13.2. The preceding obligation will not apply if: (i) the Services provided are used inconsistent with this Agreement or the Documentation; (ii) if Services or any part thereof have been modified without the prior written consent of BigPanda; or (iii) a defect in Services provided hereunder has been caused by any of Customer’s IT infrastructure, including but not limited to, Customer’s equipment, software or third-party software. In addition, the preceding obligation does not apply to downtime, service interruption or other related issues covered by BigPanda’s SLA. Customer’s sole and exclusive remedies for BigPanda’s failure to meet an SLA Obligation is described in the applicable SLA.

13.3. In the event Customer discovers that the Services provided by BigPanda hereunder, as applicable, are not operating as documented in an Order, Documentation or this Agreement and promptly reports such operational error to BigPanda in writing, BigPanda will (i) exercise commercially reasonable efforts to correct the operational error at no additional charge to Customer, or, if BigPanda, in its reasonable discretion, is unable to correct the operational error (ii) refund Customer any unused, prepaid fees covering the remainder of the then-current Subscription Term dating from the receipt of Customer’s written notice. THE REMEDY STATED IN THIS PARAGRAPH AND THE REMEDY STATED IN BIGPANDA’S SLA, AS APPLICABLE, CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND BIGPANDA’S ENTIRE LIABILITY UNDER THIS SECTION OF THIS AGREEMENT.

13.4. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 13, THE SERVICES PROVIDED HEREUNDER ARE PROVIDED “AS IS” AND BIGPANDA MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. BIGPANDA DOES NOT WARRANT THAT (A) THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS; OR (B) THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE.

14.0 Intellectual Property & Trademarks.

14.1. Services, Access Point(s), Documentation, System Data, including but not limited to, the structure, format, templates, and methodologies used to generate reports, analytics, visualizations, or other methodologies of outputs, prompts, prompt templates, prompt chains, prompt engineering techniques and methodologies, and any content, information, or data, excluding Customer Data, embodied in or used in connection with the implementation, operation, improvement, maintenance, or hosting of the Services including all associated software (whether in source code, object code, or other form), methodologies, and all intellectual property and other rights, title, and interest therein (including copyrights, trade secrets, and all rights in patents, custom reports, compilations, algorithms, inventions, improvements, modifications, extensions, enhancements, configurations, derivative works, discoveries, processes, methods, designs and know-how (regardless of whether copyrightable or patentable) pertaining to any of the foregoing (all of which shall be deemed part of the “BigPanda Proprietary Materials”), whether conceived by BigPanda alone or in conjunction with others constitute Confidential Information and the valuable intellectual property, proprietary material, and trade secrets of BigPanda and our licensors and are protected by applicable intellectual property laws of the United States and other countries. Customer acknowledges and agrees that except for the rights of access or license expressly granted to Customer in this Agreement, BigPanda shall retain all right, title and interest in and to the foregoing, inclusive of any derivatives, modifications or improvements, whether developed by BigPanda independently or in collaboration with Customer, and nothing contained in this Agreement shall be construed as conferring upon Customer by implication, operation of law, estoppel, or otherwise, any other license or right to BigPanda Proprietary Materials.

14.2. Each party shall strictly comply with all standards with respect to the other party’s trademarks which may be furnished by such party from time to time. BigPanda may identify Customer by name, with or without use of the Customer’s trademark in general promotional lists of BigPanda’s customers, which consent may be revoked at any time with Customer’s written notice. In addition, Customer may participate in case studies, success stories, and similar promotional materials describing Customer’s use of the Services and results achieved, subject to Customer’s prior written approval.

15.0 Confidentiality.

15.1. Confidential Information means any data or information disclosed to one party, oral or written, wherein a reasonable person with general industry knowledge would likely understand such information is non-public, sensitive, proprietary or confidential. Such information includes, but is not limited to, BigPanda Proprietary Materials & Documentation (in whatever form or media provided), inventions, internal processes, plans, financial information,
Customer Data, System Data, pricing and the terms and conditions of this Agreement. Notwithstanding the foregoing, Confidential Information shall not include information that the receiving party may reasonably demonstrate: (i) is in or has entered the public domain through no breach of this Agreement; (ii) it has been rightfully received by the receiving party from a third party and without breach of any obligation of confidentiality of such third party to the owner of the Confidential Information; (iii) it has been approved for release by written authorization of the owner of the Confidential Information; or (iv) was independently developed by a party without use of or access to the Confidential Information of the other party.

15.2. Each party acknowledges and agrees that, from time to time, it may receive Confidential Information from the other party. The party that receives Confidential Information (the Receiving Party) hereby agrees (i) to hold the other party’s (the Disclosing Party) Confidential Information in confidence and to take reasonable precautions to protect such Confidential Information from unauthorized disclosure (including, without limitation, all precautions the Receiving Party employs with respect to its own confidential materials), (ii) not to make any use whatsoever at any time of such Confidential Information except in furtherance of this Agreement, (iii) not to copy or reverse engineer any such Confidential Information, and (iv) that any employee, subcontractor, or agent given access to any such Confidential Information must have a legitimate need to know and shall be bound in writing to comply with confidentiality obligations at least as restrictive as the Receiving Party’s confidentiality obligations in this Agreement.

15.3. Notwithstanding the above, the Receiving Party may disclose Confidential Information only to the extent legally compelled by a court or other government authority, provided, however, that the Receiving Party will, to the extent legally permissible, give prompt written notice to the Disclosing Party of such legal process upon receipt so that the Disclosing Party may seek an appropriate protective order, or pursue such other legal action, as the Disclosing Party may deem appropriate.

15.4. Each party’s confidentiality obligations will survive for one (1) year after such Receiving Party no longer holds any of Disclosing Party’s Confidential Information in its possession, custody or control; provided, however, that with respect to any Confidential Information that constitutes a trade secret under applicable law, the confidentiality obligations shall continue for so long as such information remains a trade secret. Customer understands and agrees that BigPanda shall delete any Customer Data within ninety (90) days of termination. Prior to its deletion, BigPanda will ensure appropriate access for Customer to download any Customer Data from the SaaS it wishes to retain during the first sixty (60) days after termination.

15.5. This Section 15 shall replace any prior agreement, written or oral, regarding confidentiality and/or non-disclosure obligations.

16.0 Fees & Payment.

16.1. Customer shall pay to BigPanda the amounts as set forth on the Order. All fees are non-refundable and non-cancelable. Fees listed do not include any applicable sales, use, withholding, excise or VAT taxes. Customer shall be responsible for payment of all such taxes, fees, duties and charges, and any related penalties and interest, arising from the payment of such fees or the delivery or use of the Services.

16.2. In the event of a good faith dispute as to the fees on an invoice, Customer shall promptly give written notice to BigPanda stating the details of any such dispute and shall promptly pay any undisputed amount. The acceptance by BigPanda of such partial payment shall not constitute a waiver of payment in full by BigPanda of the disputed amount. Customer agrees to pay all costs and expenses of whatever nature, including reasonable attorneys’ fees, incurred by or on behalf of BigPanda in connection with the collection of any unpaid amounts that were rightfully owed to BigPanda hereunder.

16.3. Any undisputed amount due to BigPanda under this Agreement and not paid within 30 days of invoice due date or as otherwise stated on the Order may be subject to a finance charge payable by Customer which is equal to one and one-half percent (1.5%) or the highest rate allowable by law, whichever is less, determined and compounded daily from the date such amount is due until the date such amount is paid. Notwithstanding anything to the contrary contained in this Agreement, failure to make timely payments of undisputed amounts shall constitute a default hereunder and shall entitle BigPanda to suspend Customer’s access to the Services without notice at BigPanda’s sole discretion.

17.0 Indemnification.

17.1. BigPanda will defend Customer against, and will indemnify Customer against final award of damages paid to unaffiliated third parties that brought the claim and arising out of any claim that the SaaS, during the Subscription Term, infringes any U.S. patent issued as of the Effective Date (“Claim”); provided that: (i) Customer promptly notifies BigPanda in writing after Customer’s receipt of notification of a potential Claim; (ii) BigPanda shall have the right to assume sole control of the defense of such Claim and all related settlement negotiations; and (iii) Customer provides BigPanda, at BigPanda’s request and expense, with the assistance, information and authority necessary to perform BigPanda’s obligations under this Section. Notwithstanding the foregoing, BigPanda shall have no liability for any Claim to the extent it is based on (i) Customer’s written specifications or direction; (ii) Customer’s or any agent of Customer’s modification of the SaaS without BigPanda’s written approval; (iii) Customer’s IT infrastructure or software. Customer reserves the right to retain counsel at its own expense to participate in the defense and settlement of any such Claim. If, due to a Claim, (i) the SaaS is held by a court of competent jurisdiction to be or is believed by BigPanda to infringe, or (ii) Customer receives a valid court order enjoining Customer from using the SaaS, BigPanda may at its expense, (i) replace or modify the SaaS to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, or (ii) obtain for Customer a license to continue using the SaaS or (iii) terminate the applicable Order and its indemnity obligation for further activity by requesting that Customer cease use of the offending BigPanda Service and then refunding to Customer any prepaid and unused fees representing the remainder of the Subscription Term. THE FOREGOING STATES THE ENTIRE LIABILITY OF BIGPANDA WITH RESPECT TO THE INFRINGEMENT OF ANY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS BY THE SAAS OR OTHERWISE, AND CUSTOMER HEREBY EXPRESSLY WAIVES ANY OTHER LIABILITIES OR OBLIGATIONS WITH RESPECT THERETO.

18.0 Limitation of Liability.

18.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT FOR BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING BUT NOT LIMITED TO
NEGLIGENCE) OR ANY OTHER LEGAL OR EQUITABLE THEORY FOR: (I) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE, PROFITS OR BUSINESS, COSTS OF DELAY, COSTS OF LOST OR DAMAGED DATA OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE; COST OF PROCUREMENT OF
SUBSTITUTE SERVICES, OR (II) ANY AMOUNTS IN EXCESS, IN THE AGGREGATE, OF THE FEES PAID OR PAYABLE TO BIGPANDA HEREUNDER DURING THE TWELVE MONTH PERIOD IMMEDIATELY
PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.

18.2. THE EXCLUSIONS OF AND LIMITATIONS ON LIABILITY SET FORTH IN SECTION 18.1 WILL NOT APPLY TO A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD.

18.3. THE EXCLUSIONS OF AND LIMITATIONS ON LIABILITY SET FORTH IN SECTION 18.1(II) WILL NOT APPLY TO ANY COSTS OF DEFENSE AND ANY AMOUNTS AWARDED AGAINST AN INDEMNIFIED PARTY BY A COURT OF COMPETENT JURISDICTION OR AGREED UPON PURSUANT TO SETTLEMENT AGREEMENT THAT ARE SUBJECT TO SUCH PARTY’S INDEMNIFICATION AND DEFENSE OBLIGATIONS UNDER THIS AGREEMENT.

19.0 Termination and Effects.

19.1. Unless otherwise agreed in writing by the parties or terminated earlier pursuant to this Agreement, this Agreement shall terminate six (6) months after the expiration or termination of the last Order.

19.2. Either party may terminate this Agreement or any Order(s) upon written notice to the other party if the other party is in material breach of any obligation under this Agreement and fails to cure such breach within thirty (30)
days following receipt of written notice detailing the breach. If the breaching party does not cure the breach within this cure period, the non-breaching party may terminate the Agreement or any Order(s) effective immediately upon written notice.

19.3. Upon termination for any reason, except for a limited right to access and download Customer Data for a period not to exceed 60 days, any and all rights of access or licenses granted to the Services and the Documentation shall expire. During such 60-day period, Customer may export Customer Data in a generally available standard format supported by the SaaS; BigPanda shall have no obligation to provide data in any format or to perform data migration services. BigPanda shall discontinue the provision of the Services, and Customer shall promptly pay any outstanding invoices for Services rendered through the date of termination. If an additional Order is entered into within six (6) months of expiration or termination, the terms and conditions of this Agreement shall apply.

19.4. Any provision of this Agreement that contemplates performance or observance subsequent to any termination or expiration of this Agreement, including, without limitation, all provisions with respect to payment,
Intellectual Property, limitation of liabilities, indemnification, governing law and arbitration shall survive any termination or expiration of this Agreement and continue in full force and effect in perpetuity.

20.0 General Terms.

20.1. Customer acknowledges that the Services, including any software, documentation, and technical data provided by BigPanda, may be subject to U.S. export control laws and regulations, as well as similar laws applicable in other jurisdictions. BigPanda represents that the services provided under this Agreement are not classified under strict export controls and are intended for general commercial use. Customer agrees not to use, export, re-export, or transfer the Services or any related content in violation of applicable export control laws and regulations. Customer is solely responsible for compliance with all applicable import, export, and re-export control laws, including obtaining any required governmental authorizations, and shall not use the Services in any jurisdiction or by any person where such use is restricted or prohibited by law.

20.2. The parties shall perform all of their duties under this Agreement as independent contractors, and nothing in this Agreement shall be construed to give either party the power to direct or control the activities of the other
party, or to constitute the parties as principal and agent, employer and employee, franchiser and franchisee, partners, joint venturers, co-owners, or otherwise as participants in a joint undertaking. The parties understand and agree that neither party grants the other party the power or authority to make or give any agreement, statement, representation, warranty, or other commitment on behalf of the other party, or to enter into any contract or otherwise incur any liability or obligation, express or implied, on behalf of the other party, or to transfer, release, or waive any right, title or interest of such other party.

20.3. Neither this Agreement nor any rights hereunder may be transferred or assigned by either party without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, either party may assign or transfer this Agreement or any rights or obligations hereunder without the other party’s consent to a third-party acquirer of all, or substantially all, of the assets or business of a party, whether by sale, merger, or otherwise. Except as provided in this section, any attempts by either party to assign any of its rights or delegate any of its duties hereunder without the prior written consent of the other party shall be null and void. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.

20.4. Neither party hereto shall be responsible for any failure to perform its obligations under this Agreement if such failure is caused by acts of God, natural disasters, war, acts of terrorism, strikes, revolutions, lack or failure of third party infrastructure, lack or failure of public or private utilities, laws or governmental regulations (including legislation that makes performance herein impossible, impractical, or economically unreasonable) or any other causes that are beyond the reasonable control of such party. Obligations hereunder, however, shall in no event be excused but shall be suspended only until the cessation of any cause of such failure. In the event that such force majeure should obstruct performance of this Agreement for more than ten (10) business days, the parties hereto shall consult with each other to determine whether this Agreement should be modified or terminated.

20.5. This Agreement shall be governed by and construed under the laws of the State of California and the United States without regard to conflicts of laws provisions thereof and without regard to the United Nations Convention on Contracts for the International Sale of Goods, and the parties consent to exclusive jurisdiction and venue of the State or Federal Courts located in San Francisco County, California. Any dispute arising from or relating to the subject matter of this Agreement that cannot be resolved thereby within a period of 30 days after written notice of a dispute has been given by one party hereunder to the other, shall be finally settled by arbitration in San Francisco, California, using the English language in accordance with the Arbitration Rules and Procedures of JAMS/Endispute (“JAMS”) then in effect, by an arbitrator with substantial experience in resolving complex commercial contract disputes, who will be chosen from the appropriate list of JAMS arbitrators. If the parties cannot agree upon the identity of an arbitrator within 15 days following the arbitration date, then an arbitrator shall be selected on an expedited basis in accordance with the Arbitration Rules and Procedures of JAMS. The arbitrator shall have the authority to grant specific performance and to allocate between the parties the costs of arbitration (including service fees, arbitrator fees and all other fees related to the arbitration) in such equitable manner as the arbitrator may determine. The prevailing party in the arbitration shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys’ fees, expert witness fees and all other expenses) incurred in connection therewith. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for preliminary injunctive relief pending a final decision by the arbitrator, provided that a permanent injunction and damages shall only be awarded by the arbitrator.

20.6. This Agreement, together with all Orders and any policies or documents incorporated by reference, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes any and all prior or contemporaneous agreements, representations, or understandings, whether written or oral. Except as expressly set forth herein, no modification, amendment, or waiver of any provision of this Agreement by Customer shall be effective unless agreed to in writing by BigPanda. Any terms, provisions, or conditions on any purchase order, acknowledgment, or other business form provided by Customer will have no effect on the rights or obligations of the parties, regardless of any failure of BigPanda to object. In the event of any conflict or inconsistency, the order of precedence shall be: (1) Order(s), (2) this Agreement, then (3) any SOW. If any provision of this Agreement is determined to be illegal or unenforceable, a modified provision shall be substituted that carries out as nearly as possible the original intent, and the remaining provisions shall remain in full force and effect.

20.7. The waiver by either party of a breach of any provision contained herein shall be in writing and shall in no way be construed as a waiver of any subsequent breach of such provision or the waiver of the provision itself. Failure or delay by either party in exercising any right hereunder shall not operate as a waiver of such right.

20.8. Notices required or permitted to be given hereunder will be deemed delivered and given for all purposes: (i) on the delivery date, if delivered by hand to the party to whom such notice is directed; (ii) two (2) Business Days after deposit with a commercial overnight carrier; (iii) five (5) Business Days after being mailed by United States registered or certified mail, return receipt requested; and (iv) on the date sent, if sent via email, provided that the sender does not receive an automated failure-to-deliver notification within twenty-four (24) hours of sending. Notwithstanding the foregoing: (a) operational notices to Customer, including notices relating to subprocessor updates, security practices, or policy changes, may be sent to the account administrator designated in the Services either through the Services via dashboard or via email, and such notices shall be effective upon sending or posting; dashboard notifications shall be deemed received upon Customer’s next login to the Services or five (5) Business Days after posting, whichever is earlier; and (b) any notice of material breach or termination to BigPanda must be sent via overnight carrier or certified mail to be effective. Notices to BigPanda shall be sent to: 555 Twin Dolphin Drive, Suite 155, Redwood City, CA 94065, Attn: Legal Department, with a copy via email to legal@bigpanda.io. Notices to Customer shall be sent to the address or email set forth in the applicable Order or as otherwise provided by Customer in writing to legal@bigpanda.io. If Customer has not provided a notice address, notices may be sent to the email address associated with Customer’s account. Customer’s failure to maintain a current notice address shall not delay or invalidate any notice sent by BigPanda to the last known address on file. Either party may change its notice address by providing written notice to the other party in accordance with this Section. Any such change of notice address shall be effective five (5) Business Days after receipt by the other party.