TERMS AND CONDITIONS

The following Terms and Conditions govern the use of the Service (as hereinafter defined). By clicking below, you agree that you have read and understood the following Terms and Conditions and agree to be bound thereby.

1. Definitions

The following capitalized terms shall have the meanings provided below whenever used in these Terms and Conditions.

“Confidential Information” refers to the following types of material or content one Party to this Agreement (“Discloser”) discloses to the other (“Recipient”): (a) any information Discloser marks or designates as “Confidential” at the time of disclosure; and (b) any other non-public, sensitive information disclosed by Discloser including, but not limited to code, inventions, know-how, business, technical and financial information, or other information which should reasonably be understood by the Recipient to be confidential at the time it is disclosed. Confidential Information does not include information that: (i) is lawfully in Recipient’s possession at the time of disclosure; (ii) is independently developed by Recipient without use of or reference to the Discloser’s Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Recipient’s or any other person’s or entity’s improper or illegal action or inaction; or (iv) is obtained by the Recipient from a third party who had the legal right to disclose such information.

“Client Data” means information that is comprised of personal data obtained from, used in, stored or generated by the Client as the result of the use of the Service. Client Data may include, but is not limited to, email addresses, first and last name, phone number, address, cookies, Usage Data, location data and Cookie data.

“Client Input” means suggestions, enhancement requests, recommendations or other feedback provided by Client, its employees, agents and representatives, or any other person or entity acting at Client’s direction, relating to the operation or functionality of the Service.

“Data Processors” mean any person or entity that processes the data on behalf of the Data Controller. Panovents may use the services of various Data Processors at its discretion.

“Intellectual Property Rights” means any and all common law, statutory and other industrial property rights and intellectual property rights, including copyrights, trademarks, trade secrets, patents and other proprietary rights issued, honored or enforceable under any applicable laws anywhere in the world, and all moral rights related thereto.

“Malicious Code” means viruses, worms, timebombs, trojan horses and other malicious code, files, scripts, agents or programs.

“Service” means the Panovents’ website as operated and maintained by Panovents.

“Terms and Conditions” mean these Terms and Conditions, including any exhibits or attachments hereto or any other document explicitly incorporated herein as well as any amendments or Order Forms executed by the Parties.

“Updates” means all changes to the Service and Panovents Documentation as developed by Panovents and made available to Client.

“Usage Data” means all data collected automatically either as the result of the use of the Service or from the Service infrastructure itself (e.g., the duration of a page visit). Panovents may use Usage Data for any legal purpose associated with the Service.

2. Provision of Service

2.1 Panovents Obligations

Panovents shall make the Service available to Client in accordance with these Terms and Conditions.

2.2 Client Obligations

Client shall use the Service in compliance with these Terms and Conditions. Client shall: (a) have sole responsibility for the accuracy, quality and legality of all Client Data and (b) take commercially reasonable efforts to prevent and be responsible for unauthorized access to, or use of, the Service and notify Panovents promptly of any such unauthorized access or use. Client shall not: (i) use the Service in violation of applicable laws; or (ii) send or store Malicious Code by way of the Service or its related systems or networks. Client shall designate named contacts to request and receive support services from Panovents. Named support contacts must be trained on the Panovents Service for which they initiate support requests. Client shall be liable for the acts and omissions of all persons or other legal entities that it allows to access (including unauthorized access) the Service.

2.3 Acceptable Use

Client acknowledges and agrees that Panovents does not police the content of Client Data nor communications of Client or its users transmitted through the Service, and that Panovents shall not be responsible for the content of any such communications or transmissions. Client shall use the Service exclusively for authorized and legal purposes, consistent with all applicable laws and regulations and these Terms and Conditions. Client is solely responsible for (a) assuring that the disclosure and use of Client Data, content or information provided to Panovents does not violate any applicable law or infringe upon the Intellectual Property Rights of any third party, and (b) using any reports and other materials prepared by Client through the Service in a manner that will not violate any applicable law or infringe upon the Intellectual Property rights of any third party.

Client agrees not to post or upload any content or data into the Service which (aa) is libelous, defamatory, obscene, pornographic, abusive, harassing or threatening; (bb) violates the rights of others, such as data which infringes on any intellectual property rights or violates any right of privacy or publicity; or (cc) otherwise violates any applicable law. Panovents may remove any violating content posted or transmitted through the Service, without notice to Client. Panovents may suspend or terminate any user’s access to the Service upon notice in the event that Panovents reasonably determines that such user has violated the terms and conditions of this Agreement.

3. Fees

3.1 Invoices and Payment

All fees are quoted and payable in United States Dollars, unless stated otherwise. All invoiced charges are due net thirty (30) days from the invoice date. Late payments shall accrue interest at the rate of 1.5% per month or such other rate as required by law. All payment obligations are non-cancelable and all payments made are non-refundable. Without limiting its other rights and remedies, Panovents reserves the right to suspend the Service until such amounts are paid in full. All fees invoiced pursuant to this Agreement do not include any applicable taxes. Client shall be solely responsible in the event any authority imposes a duty, tax, levy or fee (excluding those based on Panovents’s net income) directly upon the Client in relation to this Agreement.

3.2 Usage Metric Verification Process

Client has access to self-service usage metrics on demand and within the Service. Client system administrators can add or remove accounts and users as needed. It is the Client’s sole responsibility to archive or remove users and accounts if they are no longer being used. Panovents may verify relevant usage metrics through audits at its discretion, the results of which will be shared with the Client. Any within scope use exceeding the usage metrics, as defined pursuant to this Agreement, identified as the result of an audit will be subject to additional fees based on the then applicable fee per usage metric. Fees accrue in the calendar month the excess use began and will be invoiced coterminous with the then current amount due.

3.3 Integrated Notification Services

The Panovents platform includes integrated notification services which can be enabled by Client for the purposes of customer alerts and notifications. Panovents’s Integrated Notification services include:

• Inbound and outbound SMS text messaging
• Outbound voice messaging
• Inbound and outbound email messaging

The ongoing usage costs will be invoiced based on actual usage.

4. Proprietary Rights

4.1 Panovents Intellectual Property Rights

Panovents retains all right, title and interest in and to the Service and other Panovents Intellectual Property Rights including any related methodologies, techniques, processes and instruction developed by Panovents and used in the course of delivering the Service under this Agreement. No rights are granted to Client hereunder other than expressly set forth herein. Client shall not (and shall not allow or cause any third party to) (a) reverse engineer, modify, decompile or copy the Service or create any derivative works based on the Service; (b) copy any features, functions, interfaces, integrations or graphics of the Service; or (c) access the Service in order to build any commercially available product or service.

4.2 Client Rights

Panovents hereby grants to Client a non-exclusive, non-transferable, non-perpetual, limited license to use the Service and Panovents Documentation during the term in accordance with these Terms and Conditions.

4.3 License to Host Client’s Data

Client grants Panovents and Panovents’s Data Processors and other hosting partners a worldwide, limited-term license to host, copy, transmit and display Client Data, as necessary for Panovents to provide the Service in accordance with this Agreement. As between Panovents and Client, Panovents acquires no right, title or interest from Client under this Agreement in, or to, Client Data.

4.4 License to use Client Input

Client grants to Panovents and its affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Service any suggestion, enhancement request, recommendation, correction or other Client Input relating to the Service. Panovents shall have no obligation to incorporate Client Input into the Service.

4.5 Statistical Information

Panovents owns all aggregated and statistical data derived from the operation of the Service, including, without limitation, the number of records in the Service, the number and types of transactions, configurations and performance results for the Service. Panovents may anonymously compile statistical information related to the performance of the Service for purposes of improving the Service, provided that such information does not identify Client Data or include Client’s name.

5. Confidentiality

5.1 Confidentiality

A Party shall not disclose or use any Confidential Information of the other Party except as reasonably necessary to perform its obligations or exercise its rights pursuant to this Agreement except with the other Party’s prior written permission or as required by applicable law or by proper legal or governmental authority. If Client is required to disclose Panovents Confidential Information pursuant to applicable law or by proper legal authority, Client shall give Panovents notice of any such legal or governmental demand and reasonably cooperate with Panovents, at Panovents’s expense, in any effort to seek a protective order or otherwise contest such required disclosure.

5.2 Nondisclosure

A Party shall not use Confidential Information for any purpose other than to facilitate this Agreement. A Party receiving the Confidential Information (“Recipient”) from the other Party (“Discloser”): (a) shall not disclose Confidential Information to any employee or contractor unless such person needs access in order to facilitate the Agreement and executes a nondisclosure agreement with Recipient; and (b) shall not disclose Confidential Information to any third party without the disclosing Party’s prior written consent.

5.3 Protection

Each Party shall protect Confidential Information with the same degree of care it uses to protect its own Confidential Information, but in no event using less than a commercially reasonable standard of care.

5.4 Injunctive Relief

The Parties agree that breach of Confidentiality would cause irreparable injury, for which monetary damages would be inadequate. If a Recipient discloses or uses any Confidential Information of the Discloser in breach of confidentiality protections hereunder, the Discloser, in addition to any other remedies available, shall have the right to injunctive relief to enjoin such acts.

5.5 Retention of Rights

This Agreement does not transfer ownership of Confidential Information or grant a license or any other right thereto. The Discloser will retain all right, title and interest in and to all of Discloser’s Confidential Information.

6. Data Privacy and Security

6.1 Panovents Use of Data

Client hereby grants Panovents, during the term, a limited right to access, process, collect, store, generate, display and use Client Data for the sole purpose of providing the Service. Notwithstanding the foregoing, Panovents may disclose Client Data as required by applicable law or by proper legal or governmental authority. Panovents shall give Client notice of any such legal or governmental demand and reasonably cooperate with Client in any effort to seek a protective order or otherwise contest such required disclosure, at Client’s expense.

6.2 Data Security

Each Party shall be responsible for establishing and maintaining its own commercially reasonable data privacy and information security policies, including physical, technical, administrative and organizational safeguards in relation to the Service.

6.3 Unauthorized Disclosure

If either Party believes there has been a security breach, such Party must notify the other Party upon the earlier of forty-eight (48) hours after discovery or any time frame required by applicable law unless legally prohibited from doing so. Each Party will provide commercially reasonable assistance to the other Party in mitigating such breach.

7. Sub-processors

Client hereby agrees and provides a general prior authorization that Panovents may engage Data Processors and other sub-processors to carry out data processing activities. Panovents shall ensure that each Data Processor or sub-processor has entered into a written agreement that is no less protective than this Agreement.

8. Warranties and Disclaimers

8.1 From Panovents

1. Panovents represents and warrants that the Service will perform materially in accordance with this Agreement.
2. Panovents represents and warrants that it owns the Service and has the power and authority to grant the rights in this Agreement without the further consent of any third party.
3. Panovents represents and warrants that to the best of its knowledge the Service does not contain any Malicious Code.

8.2 From Both Parties

Each Party represents and warrants that it has the full right and authority to enter into and perform its obligations under these Terms and Conditions and that no pending or threatened claim or litigation known to it would have a materially adverse impact on its ability to perform as required by this Agreement.

8.3 Warranty Remedies

In the event of a breach of the warranty as set forth in this Section, or upon the discovery of Malicious Code in the Service, (a) Panovents shall correct the non-conforming Service at no additional charge to Client or (b) in the event Panovents is unable to correct such deficiencies, after good-faith efforts, Client’s exclusive remedy shall be a refund of the fees actually paid by Client for the three (3) month period immediately preceding notice to Panovents of such breach or discovery.

8.4 Warranty Disclaimer

EXCEPT FOR THE EXPRESS WARRANTIES OUTLINED IN THIS SECTION, PANOVENTS MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICE AND/OR RELATED PANOVENTS DOCUMENTATION. PANOVENTS DOES NOT WARRANT THAT THE SERVICE WILL PERFORM WITHOUT ERROR OR THAT IT WILL RUN WITHOUT INTERRUPTION. THE LIMITED WARRANTIES PROVIDED HEREIN ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED TO CLIENT IN CONNECTION WITH THE PROVISION OF THE SERVICE.

9. Limitation of Liability

9.1 Clarifications and Disclaimer

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND, EXCEPT WITH RESPECT TO PANOVENTS’S INTELLECTUAL PROPERTY RIGHTS, INDEMNIFICATION OBLIGATIONS, RECKLESS MISCONDUCT, GROSS NEGLIGENCE, WILLFUL MISCONDUCT AND/OR FRAUD, IN NO EVENT SHALL PANOVENTS’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE FEES ACTUALLY PAID BY CLIENT IN CONSIDERATION FOR PANOVENTS’S SERVICE DELIVERY DURING THE IMMEDIATELY PRECEDING THREE (3) MONTH PERIOD FOR THE SERVICE FROM WHICH THE CLAIM AROSE. PANOVENTS’S LIABILITY LIMITS APPLY TO PANOVENTS’S AFFILIATES, PROVIDERS, AGENTS, SPONSORS, DIRECTORS, OFFICERS, EMPLOYEES, LAWYERS, CONSULTANTS AND OTHER REPRESENTATIVES.

9.2 Exclusion of Damages

IN NO EVENT SHALL PANOVENTS HAVE ANY LIABILITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, OR FOR ANY LOST PROFITS, LOSS OF USE, COST OF DATA RECONSTRUCTION, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICE, INCLUDING BUT NOT LIMITED TO, THE USE OR INABILITY TO USE THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION.

10. Term and Termination

10.1 Term of Agreement

These Terms and Conditions shall be valid as of the date accepted by Client and remain in effect until terminated pursuant to the terms contained herein.

10.2 Termination for Any Reason

Either Party may terminate these Terms and Conditions for any reason or no reason on thirty (30) days prior written notice to the other Party.

10.3 Termination for Default

Either Party may terminate these Terms and Conditions immediately in the event of a material breach by the other Party if such breach remains uncured ten (10) days after notice thereof.

10.4 Effect of Termination

Upon any termination of this Agreement, Client shall, as of the date of such termination, immediately cease accessing and otherwise utilizing the Service. Termination for any reason shall not relieve Client of the obligation to pay any fees accrued or due and payable to Panovents prior to the effective date of termination.

10.5 Access to Client Data

Upon written request by Client made prior to any expiration or termination of this Agreement, Panovents will make Client Data available to Client through the Service solely for purposes of Client retrieving Client Data for a period of up to sixty (60) days. After said period, Panovents will have no obligation to maintain or provide any Client data and shall thereafter, unless legally prohibited, delete all Client Data and will have no further obligation to make it available to Client.

11. Miscellaneous

11.1 Independent Contractor

Panovents and all persons employed by or contracted by Panovents to furnish labor and/or materials under this Agreement are independent contractors and do not act as agents or employees of Client. Panovents has full rights to manage its employees in their performance of the Service under this Agreement. This Agreement does not create, nor is it intended to create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties. There are no third-party beneficiaries to this Agreement.

11.2 Governing Law

This Agreement shall be governed exclusively by the internal laws of the State of West Virginia.

11.3 Notices

All notices under this Agreement shall be in writing and shall be deemed to have been given upon the third business day after first class mailing. Notices to each Party shall be sent to its last known address.

11.4 Waiver

No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right or any other right. Neither Party’s review, provision, acceptance, nor payments for any of the Services provided under this Agreement shall be construed to operate as a waiver of any Panovents’s rights under this agreement or of any cause of action available to Panovents arising out of the performance of this Agreement.

11.5 Force Majeure

In no event shall Panovents be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that Panovents shall use reasonable efforts which are consistent with accepted software industry practices to resume performance as soon as practicable under the circumstances.

11.6 Assignment

Neither Party may assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the other Party (which consent shall not be unreasonably withheld).

11.7 Severability

To the extent permitted by the law, the Parties waive any provision of law that would render any clause of this Agreement invalid or unenforceable. In the event that a provision herein is held to be invalid or unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by the law, and the remaining provisions of this Agreement will continue in full force and effect.

11.8 Publicity

Except as required for the Service, Panovents shall not use Client’s name, logos or trademarks in any written press releases, advertisements and/or marketing materials without the prior consent of Client. Panovents is authorized to use Client’s name as required to perform the Service.

11.9 Amendment

These Terms and Conditions may only be amended in writing by authorized representatives of each Party.