This Terms of Use Agreement (“Agreement”) is made between Portal Panda, LLC (“Portal Panda”), and you, the customer that has initiated Services and agreed to the terms of this Agreement (“Customer”), each, a “Party” and collectively, the “Parties.”
By accessing or using Portal Panda Technology, you agree to be bound by this Agreement. Portal Panda will periodically update the terms of this Agreement. Unless stated otherwise, the updated terms of this Agreement will become effective and binding once it is posted to https://www.portalpanda.com/terms-of-use. This Agreement is effective as of the date on which you first utilize the Services. In addition, the following policy applies to your use of Portal Panda Technology: Portal Panda Privacy Policy, available at https://www.portalpanda.com/privacy-policy which outlines the terms on which we process any personal data Portal Panda collects from you, or that you provide to us.
Capitalized terms have the meaning set forth below or as defined within this Agreement.
1.1 “Applicable Privacy Laws” means, to the extent applicable to the Services, all worldwide data protection and privacy laws and regulations, including where applicable, the California Consumer Privacy Act Cal. Civ. Code §§ 1798.100 et seq. (“CCPA”), the General Data Protection Regulation (“GDPR”), the e-Privacy Directive (Directive 2002/58/EC), and any U.S. state or national data protection laws as superseded, amended or replaced.
1.2 “Authorized User” means the Personnel who are authorized to access the Platform pursuant to Customer’s rights under this Agreement.
1.3 “Customer Content” means any content and information provided or submitted by, or on behalf of, Customer or its Authorized Users, or imported from Third-Party Services at the direction of Customer, in connection with the Services, including any Personal Data.
1.4 “Customer Marks” means Customer’s trademarks, tradenames, service marks, and logos.
1.5 “Documentation” means all specifications, user manuals, and other technical materials relating to the Platform and provided or made available to Customer, as may be modified by Portal Panda from time to time.
1.6 “Portal Panda Technology” means the Platform, the Services, the Documentation and any applicable software, data, or technical information contained within the foregoing.
1.7 “Fees” has the meaning given in Section 3.1.
1.8 “Intellectual Property Rights” means all past, present, and future rights of the following types, which may exist or be created under the laws of any jurisdiction in the world: (a) rights associated with works of authorship, including exclusive exploitation rights, copyrights, moral rights, and mask work rights, (b) trademark and trade name rights and similar rights, (c) trade secret rights, (d) patent and industrial property rights, (e) other proprietary rights of every kind and nature, and (f) rights in or relating to registrations, renewals, extensions, combinations, divisions, and reissues of, and applications for, any of the rights referred to in clauses (a) through (e) of this sentence.
1.9 “License Agreement” means Portal Panda’s standard form for purchasing Services which specifies the Services and applicable Fees, often called the SaaS Licensing and Onboarding.
1.10 “Personal Data” has the meaning given in Applicable Privacy Laws.
1.11 “Personnel” means the employees, agents and independent contractors engaged by the Customer.
1.12 “Platform” means Portal Panda’s Dashboard Authentication and Hosting platform.
1.13 “Services” means the services provided through the Platform and described on a License Agreement by the Parties in writing under this Agreement.
1.14 “Term” has the meaning given in Section 4.1.
1.15 “Third-Party Services” has the meaning given in Section 8.3.
1.16 “Year” means each twelve (12) month period of a License Agreement commencing on the effective date of the License Agreement and each subsequent anniversary.
2.1 Access. Subject to the terms and conditions of this Agreement, Portal Panda grants to Customer, and their Authorized Users on Customer’s behalf, a limited, non-exclusive, non-transferable, non-sublicensable right during the Term to use the Platform and the Services in accordance with the documentation and the terms of this Agreement.
2.2 Restrictions. Customer shall not (a) modify, adapt, alter, or translate Portal Panda Technology, (b) attempt to derive or determine the source code of the Platform, or (c) use Portal Panda Technology to build a similar or competitive product. Portal Panda reserves the right to suspend Customer’s access to the Platform for failure to comply with the outlined conditions.
2.3 Service Capacity. Customer shall ensure that its use of the Platform does not exceed the capacity, limits, or thresholds specified in the applicable order form, documentation, or as otherwise communicated by Portal Panda. Portal Panda reserves the right to monitor usage and may take reasonable steps to prevent or address any excessive or unauthorized use of the Platform, including throttling performance, limiting access, or suspending Services if such use threatens the stability, security, or performance of the Platform for other customers.
2.4 Usernames and Passwords. Each Authorized User will use their unique username and password to access the Platform. Customer is responsible for maintaining the confidentiality of all Authorized Users’ unique usernames and passwords, and is solely responsible for all activities occurring under these accounts.
2.5 Customer Content. Customer is solely responsible for providing accurate and legal content.
2.6 Support Services. Subject to the terms and conditions of this Agreement, Portal Panda will exercise commercially reasonable efforts to: (a) provide support for the use of the Platform and Services to Customer, and (b) keep the Platform and Services operational and available to Customer, in each case in accordance with its standard policies and procedures.
Outlined below are the terms and conditions governing the technical provision of the Services and the Portal Panda Platform by Portal Panda to Customer. These clauses define the service levels, responsibilities, and remedies in the event of service disruptions or failures.
The following defined terms apply to this section of the Services Agreement:
If Portal Panda fails to achieve a Response Time for an Error that is in accordance with the Service Levels Model outlined above (a “Service Level Failure”), Customer shall report the Service Level Failure to Portal Panda and within five Business Days of such notification. Portal Panda must:
3.1 Fees. The fees for access to the Platform and for the services are set forth on the License Agreement.
3.2 Invoicing and Payment. All fees are non-refundable, unless otherwise specified. Portal Panda will invoice Customer in accordance with the License Agreement. If the License Agreement does not specify invoicing terms, Portal Panda will invoice annually, in advance of the services. Fees are payable no later than fifteen (15) days from the date of invoice, unless stated otherwise, and will be considered overdue if they remain unpaid thereafter.
3.3 Late Payments. Payments by Customer that are past due will be subject to interest at the rate of 1.5% per month on the overdue balance. Customer will be responsible for any costs resulting from the collection of payment such as overdue balance, attorneys’ fees, and court costs. Portal Panda reserves the right to suspend Customer and their Authorized Users’ access to the Platform if any fees are more than thirty (30) days overdue until amount is paid in full.
4.1 Term. This Agreement will begin on the effective date of the License Agreement between the Parties and will continue in accordance with the Agreement. Unless terminated or otherwise specified, the License Agreement will automatically renew for additional terms of one (1) year unless either Party gives written notice of non-renewal at least 30 (thirty) days prior to the renewal date.
4.2 Termination. Either Party may terminate this Agreement immediately if (a) the other Party materially breaches this Agreement and breach remains uncured for more than thirty (30) days or (b) Party becomes insolvent.
5.1 Both Parties acknowledge that it may receive from the other Party confidential information.
5.2 Confidential information does not include information that is available to the public.
5.3 Parties shall not use or disclose confidential Information without the prior written consent of the other Party and will take the same measures that it takes with its own confidential Information.
6.1 Portal Panda’s Commitments. During the Term, Portal Panda shall implement and maintain an information security program that incorporates administrative, technical, and physical safeguards designed to (a) ensure the security and integrity of the Customer Content, (b) prevent unauthorized access to the Customer Content, and (c) protect against threats, hazards, and security incidents with respect to Customer Content.
6.2 Privacy. Portal Panda will comply with all Applicable Privacy Laws with respect to Personal Data.
6.3 Customer Responsibility for Data and Security. Customer and its Authorized Users will have access to the Customer Content and will be responsible for all changes to Customer Content and the security of all passwords required to access the Platform. Customer will have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Content.
7.1 Portal Panda Technology. This Agreement does not grant to Customer any ownership interest in Portal Panda Technology. Portal Panda Technology is proprietary to Portal Panda.
7.2 Feedback. Customer hereby grants Portal Panda a perpetual, irrevocable, royalty-free, and fully-paid right to use and otherwise exploit in any manner any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Customer related to Portal Panda Technology, including for the purpose of improving and enhancing the Platform and the Services; provided that Customer is not referenced in such use.
7.3 Publicity. Portal Panda may use Customer’s name and Customer Marks in its Customer list (including on Portal Panda’s website, social media, and in sales and marketing materials) in the same manner in which it uses the names of its other customers.
8.1 Portal Panda Limited Warranty. Portal Panda represents and warrants that: (a) the Services will be performed consistent with generally accepted industry practices.
Customer must report any deficiencies in their performance of the above warranties to Portal Panda in writing within thirty (30) days of the non-conformance.
8.2 Customer Warranty. Customer represents and warrants that: (a) it has procured all applicable consents required to provide the Customer Content to Portal Panda for the performance of the Services, (b) the Customer Content will not (i) infringe or misappropriate any third-party’s Intellectual Property Rights, (ii) be deceptive, defamatory, obscene, pornographic or unlawful, (iii) contain any viruses, worms or other malicious computer programming codes intended to damage Portal Panda’s Technology, and (iv) otherwise violate the rights of a third-party (including under all Applicable Privacy Laws), and (c) neither Customer, nor any of its Authorized Users, shall upload to the Platform any Customer Content that contains any sensitive personal information (such as financial, medical or other sensitive personal information such as government IDs, passport numbers or social security numbers).
8.3 Third-Party Integrations. In order to provide the Services, the Platform integrates with certain third-party websites and applications (“Third-Party Services”). Customer is responsible for enabling the integration of each Third-Party Service and by doing so, Customer acknowledges that it is instructing Portal Panda to share the Customer Content (including, to the extent necessary, any Personal Data) with the providers of such Third-Party Services in order to facilitate the integration. Customer is responsible for notifying such Third-Party Services provider of the integration. Such Third-Party Services are not under the control of Portal Panda and Portal Panda is not responsible for any Third-Party Services. Customer’s use of the Third-Party Services is governed by the Customer’s agreement with, and all applicable terms and policies including privacy and data gathering practices of, providers of the Third-Party Services. Customer acknowledges and agrees that, for the purposes of Applicable Privacy Laws, each of Portal Panda and the Third-Party Services providers are not processors or subprocessors of Personal Data with respect to each other. Customer is responsible for ensuring such integrations do not compromise the security or integrity of Portal Panda Technology.
8.4 Disclaimers
(a) To the maximum extent permitted by applicable law, the Platform and the services are provided “as is” and “as available” and Portal Panda and its licensors make no representations, warranties, or conditions of any kind. Except as specified in section 7.1, Portal Panda and its licensors specifically disclaim any and all other warranties. Without limiting the generality of the foregoing, Portal Panda does not warrant that the Platform is error-free or that the Platform or the services will operate without interruption, that the reports will be accurate and Portal Panda grants no warranty regarding the use by Customer of the Platform or services. Portal Panda Technology may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. Portal Panda is not responsible for any delays, delivery failures, or other damages resulting from such problems.
(b) Customer acknowledges and agrees that Portal Panda is not liable, and Customer agrees not to seek to hold Portal Panda liable, for the conduct of third-parties, including providers of the third-party services. (c) From time to time, Portal Panda may offer new “beta” features with which Customer may experiment. Such features are offered solely for experimental purposes and without any warranty of any kind, and may be modified or discontinued at Portal Panda’s sole discretion.
8.5 Beta Services. From time to time, Portal Panda may offer access to pre-release, beta, or experimental features, products, services, or components of the Platform (collectively, “Beta Services”). Beta Services are provided for evaluation purposes only, may be modified or discontinued at any time without notice, and are offered “as is” without warranties of any kind or service level commitments. Customer acknowledges that Beta Services may be incomplete, less reliable, or produce unexpected results, and agrees to use them at their own risk.
Customer agrees to defend, indemnify, and hold harmless Portal Panda, its affiliates, licensors, and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors, and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees) arising out of or relating to Customer’s violation of these Terms of Use or use of Portal Panda Technology.
10.1 Types of Damages. Neither Party shall be liable to the other Party nor to any third-parties for lost profits or lost data or for any indirect, special, consequential, reliance, or punitive losses or damages howsoever arising under this agreement or in connection with Portal Panda Technology, whether under contract, tort or otherwise, whether foreseeable or not and regardless whether such Party has been advised of the possibility that such damages may arise, occur, or result. In no event shall Portal Panda be liable for procurement costs of substitute products or services.
10.2 Amount of Damages. Each Party’s aggregate cumulative liability under this agreement will in no event exceed the amount of fees paid by Customer under the applicable License Agreement in the twelve months immediately preceding the event giving rise to the claim. This does not include a Party’s obligations to pay the fees hereunder. In the event of damages arising from misuse of the Services or unauthorized access by third parties, the limitation of liability in this section shall apply, except where such misuse or access results from Customer’s failure to properly secure authentication credentials, tokens, or other access controls.
10.3 Exclusions. These limitations of liability do not apply to: (a) a breach by a Party of sections 2, 5, or 6, (b) a breach of a Party’s representations and warranties under sections 8, or (c) any death or personal injury caused by either Party’s negligence, gross negligence, or willful misconduct.
11.1 Relationship Between the Parties. Portal Panda is an independent contractor; nothing in this Agreement will be construed to create a partnership, joint venture, or agency relationship between the Parties. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of Portal Panda.
11.2 Injunctive Relief. Customer acknowledges that the Platform and the Services contain valuable Intellectual Property Rights and proprietary information of Portal Panda, that any actual or threatened breach of Sections 2 or 5 will constitute immediate, irreparable harm to Portal Panda for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. If Customer continues to use the Platform or the Services after its right to do so has terminated or expired, Portal Panda will be entitled to immediate injunctive relief without the requirement of posting bond.
11.3 Assignment. Neither Party may assign or transfer its rights or obligations under this Agreement without the prior written consent of the other Party, and any assignment or transfer in derogation of the foregoing shall be null and void, provided, however, that either Party shall have the right to assign the Agreement, without the prior written consent of the other Party, to the successor entity in the event of merger, corporate reorganization, or a sale of all or substantially all of such Party’s assets. This Agreement shall be binding upon the Parties and their respective successors and permitted assigns.
11.4 Notices. All notices required or permitted under this Agreement must be delivered in writing, if to Portal Panda, by emailing support@portalpanda.com and if to Customer by emailing the Customer point of contact email address listed on the License Agreement, provided, however, that with respect to any notices relating to breaches of this Agreement or termination, a copy of such notice will also be sent in writing to the other Party at the Party’s address as listed on the License Agreement by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Each Party may change its email address and/or address for receipt of notice by giving notice of such change to the other Party.
11.5 Waivers; Severability. Any waivers shall be effective only if made by writing signed by representatives authorized to bind the Parties. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. Without limiting the generality of the foregoing, Customer agrees that Section 10 will remain in effect notwithstanding the unenforceability of any provision in Sections 8 and 9.
11.6 Construction. The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word “including” means “including but not limited to.”
11.7 Force Majeure. Any delay in the performance of any duties or obligations of either Party (except for the obligation to pay Fees owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, war, fire, earthquake, typhoon, flood, natural disasters, governmental action, pandemic/epidemic, cloud-service provider outages, or any other event beyond the control of such Party, provided that such Party uses reasonable efforts, under the circumstances, to notify the other Party of the circumstances causing the delay and to resume performance as soon as possible.
11.8 Entire Agreement; Amendment. This Agreement and any applicable License Agreement constitutes the complete agreement between the Parties and supersedes all previous and contemporaneous agreements, proposals, or representations, written or oral, concerning the subject matter of this Agreement. To the extent that a conflict arises between the terms and conditions of a License Agreement and the terms of this Agreement, the terms and conditions of the License Agreement will govern. It is expressly agreed that the terms and conditions of this Agreement and any License Agreement supersede the terms of any of Customer’s purchase order. Neither this Agreement nor a License Agreement may be modified or amended except in writing signed by a duly authorized representative of each Party; no other act, document, usage, or custom will be deemed to amend or modify this Agreement or a License Agreement.
11.9 The Agreement is governed by the laws of the State of Minnesota, without regard to its conflicts of laws or provisions. All disputes arising out of this Agreement will be subject to the exclusive jurisdiction and venue of the state and federal courts in Minnesota and the Parties hereby consent to the personal jurisdiction of these courts.
If you have any questions about these Terms, please contact us.
