These User Terms (“User Terms”) govern your access and use of our software as a service applications (“Cloud Service”) and other products, services and documentation (together, “Services”) so please read them carefully. In these User Terms, “Subscriber” is the organization, company or other person that has invited or authorized you to access and use our Cloud Service. By accessing our Services, creating an account or otherwise using the Services, these User Terms apply to you as an end user of the Services (“you” and “your”).
These User Terms are a legally binding contract between you and Pani Energy Inc. (“Pani”, “we”, “our” and “us”). If you are not of the age of majority in your jurisdiction or do not agree with some or all of these User Terms, you must not access or use the Services.
1. PRIVACY AND CONSENT TO DATA USE
1.2 Consent to Data Use: By accepting these User Terms, you acknowledge and agree that we may collect and use technical data and related information, including technical information about your device, system, applications, software and peripherals, which is gathered periodically by us to provide you with updates, product support and other services relating to our Services. We may also use this information, as long as it is in a form that does not personally identify you, to improve our Services and other products or to provide services or technologies to you.
By using or accessing our Services, you represent and warrant that you: (a) are of the age of majority in your jurisdiction; and (b) can lawfully enter into and form contracts in accordance with local laws.
3. OUR SERVICES
3.1 Using the Cloud Service: Subscriber has entered into a separate agreement (the “Subscriber Terms”) with us that permits Subscriber to invite and authorize its employees, customers and other third parties (“Authorized Users”) to access and use the Cloud Service. Those Subscriber Terms contain our commitment to deliver the Services to Subscriber, who may then invite Authorized Users, including you, to create an account to access and use the Service.
3.2 Access to the Cloud Service: Your right to access and use the Cloud Service remains effective until Subscriber’s subscription for the Cloud Service expires or terminates, or your access to the Cloud Service has been terminated by Subscriber or us. Please contact Subscriber if you wish to terminate your account.
3.3 Using our Services: Subject to your compliance with these User Terms and, in relation to the Cloud Service, for the period that Subscriber provides you with access to the Cloud Service, you have the limited, non-exclusive, non-transferrable and revocable right to access and use the Services (including, if applicable, the Cloud Service. This license is conditional on your compliance with these User Terms.
3.4 Updates, Maintenance and Support: We reserve the right to update, modify, substitute, suspend or remove, without notice to you, the Services or your Content from time to time. Any updates to the Services are subject to these User Terms. Your access to the Services may also be occasionally restricted to allow for repairs, maintenance or the introduction of new functions or services. We will attempt to restore such access as soon as we reasonably can. You acknowledge that we have no obligation to provide any maintenance or support for the Services, except where required under the Subscriber Terms.
4. YOUR RESPONSIBILITIES
4.1 Your Account: You may be required to create an account to access or use the Services. If you create for an account for any of our Services, you agree: (a) that your account and password are personal to you and may not be used by anyone else to access or use the Services; (b) to provide and maintain accurate, current and complete information about yourself, including contact information; and (c) not to impersonate, or misrepresent your connection with, any person, including using another person’s username, name, likeness or account information.
4.2 Log-in Information: You are responsible for maintaining the confidentiality of your account username and password information for the Services. You must immediately notify us and, if it relates to a Cloud Service, Subscriber of any unauthorized use or suspicious activity in your account for our Services, as you are responsible for all activities that occur under your account. We will not be liable for any loss or damages that you may incur as a result of someone else using your username, password or account, either with or without your knowledge. However, you may be held liable for losses or damages incurred by us or another person due to someone else using your account or password. Without limiting the foregoing, you are responsible for ensuring that your use of our Services is compliant with all applicable laws and regulations.
4.3 Your use of the Services: You agree not to: (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Services available to any other person; (b) use the Services to process data on behalf of any other person; (c) modify, adapt, or hack the Services or otherwise attempt to gain or gain unauthorized access to the Services or related systems or networks; (d) use the Services in any unlawful manner, including in violation of any applicable export laws and regulations; (e) use the Services to send unsolicited communications, junk mail, spam or other forms of duplicative or unsolicited messages; (f) use the Services to store or transmit any content that infringes upon any person’s intellectual property rights; (g) use the Services in any manner that interferes with or disrupts the integrity or performance of the Services and its components; (h) attempt to decipher, decompile, reverse engineer, disassemble, reproduce, copy or otherwise access or discover the source code or underlying program of any software making up the Services; (i) use the Services to knowingly post, transmit, upload, link to, send or store any content that is unlawful, racist, hateful, abusive, libelous, obscene, or discriminatory or any viruses, malware, Trojan horses, time bombs, or any other similar harmful software (“Malicious Software”); (j) establish a link to our websites in such a way as to suggest any form of association, approval or endorsement on our part where none exists; (k) use the Services for the purposes of cookie tracking, ad exchanges, ad networks, data brokerages or sending electronic communications (including e-mail) in violation of applicable law; or (l) use or try to use the Services in violation of these User Terms.
4.4 Your Content: Some of our Services may permit you to submit, share, post, provide, transmit, display, upload or otherwise make available data, text, images, files, usernames, audio, video, applications, links and other materials, information and content (“Content”), which may be accessed or viewed through our Services. You are solely responsible for your Content.
4.5 Subscriber Data: You acknowledge and agree that any information submitted regarding the Subscriber or the Subscriber’s plant that you submit to the Cloud Service (“Subscriber Data”) is owned by Subscriber and that you have the right to submit the Subscriber Data on behalf of the Subscriber. The Subscriber Terms provide Subscriber with control over the Subscriber Data. Subscriber has control over whether or not you can access the Cloud Service, all of which may result in the access, use, disclosure, modification or deletion of some or all Subscriber Data.
5. OWNERSHIP RIGHTS AND RESTRICTIONS
5.1 Ownership: All right, title and interest in and to the Services, components of the Services and derivatives of the Services, will belong to and remain exclusively with us and our licensors including all ownership rights to patents, copyrights, trademarks, trade names, goodwill, trade secrets and other intellectual property rights (collectively, “Intellectual Property”) in connection therewith. All rights not expressly provided to you under these User Terms are reserved. You acknowledge that Pani has expended substantial time, effort and funds to create and deliver its Intellectual Property.
5.2 Content License: Except in respect of Subscriber Data (described in Section 4.5): (a) you hereby grant (and agree to grant) to us a transferrable, sublicensable, royalty free, perpetual right and license to use, copy, distribute, display, make available to the public, transmit, broadcast, publish, modify and create derivative works of your Content and authorize others, including other users of our Services, to do the foregoing (the “Content License”); and (b) you represent, warrant, and covenant, and can demonstrate to our full satisfaction upon request, that: (i) you own or otherwise have the legal right and capacity to grant the Content License or that your Content is in the public domain worldwide; (ii) your Content does not violate, misappropriate or infringe the rights of any third party, including, without limitation, privacy rights, publicity rights, any Intellectual Property rights; (iii) you agree to pay all royalties, fees, remuneration and any other monies due or payable arising from any use of your Content or the exercise of the Content License by us or third parties on or through our Services; and (iv) you hereby waive (and agree to waive) any moral rights you have in your Content for the purposes described in these User Terms, including for us to provide our Services.
5.3 Feedback and Suggestions: If you send us any feedback or suggestions regarding the Services, you grant to us an unlimited, irrevocable, perpetual, sublicensable, transferrable, royalty-free license to use any such feedback or suggestions for any purpose without any obligation to you.
6. SUBSCRIBER MATERIALS
6.1 Subscriber Materials: Subscriber may provide or make available materials and other information to you as part of the Service (“Subscriber Materials”). Subscriber is solely responsible for the Subscriber Materials and we do not investigate or verify the accuracy, completeness, reliability, usefulness, timeliness or currency of the Subscriber Materials.
7. RELATIONSHIP BETWEEN YOU, US, AND SUBSCRIBER
AS BETWEEN US AND SUBSCRIBER, IN RESPECT OF ANY CLOUD SERVICE, YOU AGREE THAT IT IS SOLELY SUBSCRIBER’S RESPONSIBILITY TO: (A) INFORM YOU OF ANY RELEVANT SUBSCRIBER POLICIES AND PRACTICES AND ANY SETTINGS THAT MAY IMPACT THE PROCESSING OF SUBSCRIBER DATA; (B) OBTAIN ANY RIGHTS, PERMISSIONS OR CONSENTS FROM YOU THAT ARE NECESSARY FOR THE LAWFUL USE OF SUBSCRIBER DATA AND THE OPERATION OF THE SERVICE; (C) ENSURE THAT THE TRANSFER AND PROCESSING OF SUBSCRIBER DATA UNDER THE SUBSCRIBER TERMS IS LAWFUL; AND (D) RESPOND TO AND RESOLVE ANY DISPUTE WITH YOU RELATING TO OR BASED ON SUBSCRIBER DATA, THE CLOUD SERVICE OR SUBSCRIBER’S FAILURE TO FULFILL THESE OBLIGATIONS.
8. DISCLAIMER OF WARRANTIES
Warranties regarding the Services are provided solely to Subscriber as expressly set out in the Subscriber Terms.
PANI (INCLUDING ITS AFFILIATES AND ITS AND THEIR OFFICERS, DIRECTORS, AGENTS AND ASSOCIATES) HEREBY DISCLAIMS AND YOU HEREBY WAIVE ALL REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE AND COMPLIANCE WITH APPLICABLE LAWS. PANI DOES NOT WARRANT AND YOU HEREBY WAIVE ANY WARRANTY THAT USE OF OR ACCESS TO THE SERVICES BY YOU WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE OBTAINED FROM PANI OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY BY PANI NOT EXPRESSLY STATED IN THESE TERMS. SPECIFICALLY, PANI PROVIDES NO WARRANTY ON IMPLEMENTATION OF THE RESULTS OF THE SERVICES WITHIN A PLANT: ALL DECISIONS REGARDING IMPLEMENTATION OF SUCH RESULTS ARE THE SOLE RESPONSIBILITY OF SUBSCRIBER. EXCEPT AS SET FORTH HEREIN TO THE CONTRARY, PANI DOES NOT MAKE ANY WARRANTY AND YOU HEREBY WAIVE ANY AND ALL WARRANTIES AS TO THE RESULTS OBTAINED FROM USE OF THE SERVICES OR AS TO THE ACCURACY, COMPLETENESS, TIMELINESS OR RELIABILITY OF THE SERVICES OR RECOMMENDATIONS MADE BY PANI. PANI PROVIDES NO WARRANTY ON ANY HARDWARE WHICH IS PROVIDED “AS IS”.
Some jurisdictions do not allow the exclusion of implied warranties, which means that some of the above exclusions may not apply to YOU. IN THESE JURISDICTIONS, PANI’S IMPLIED WARRANTIES WILL BE EXCLUDED TO THE GREATEST EXTENT PERMITTED BY LAW AND PANI WILL ADHERE SOLELY TO THE MINIMUM AMOUNT OF IMPLIED WARRANTIES NECESSARY TO COMPLY WITH APPLICABLE LAW.
YOU ARE SOLELY RESPONSIBLE FOR DETERMINING WHETHER THE SERVICES AND THE INFORMATION GENERATED BY THE SERVICES IS ACCURATE OR SUFFICIENT FOR YOUR PURPOSES. WE ASSUME NO RESPONSIBILITY, AND ARE NOT LIABLE FOR, ANY DAMAGE TO YOUR COMPUTER EQUIPMENT, DATA OR OTHER PROPERTY ON ACCOUNT OF YOUR INSTALLATION OF, ACCESS TO, USE OF OR BROWSING ON OUR SERVICES OR YOUR DOWNLOADING OF ANY SOFTWARE OR MATERIAL, OR INABILITY TO DO ANY OF THE FOREGOING.
9. LIMITATION OF LIABILITY
In respect of the Cloud Service, if we believe that there is a violation of the Subscriber Terms, these User Term, or any of our other policies, we will, in most cases, ask Subscriber to take action. We may directly step in and take what we determine to be appropriate action (including disabling your account) if Subscriber does not take appropriate action or we believe there is a credible risk of harm to us, the Cloud Service or any third parties.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL PANI, ITS AFFILIATES AND ITS AND THEIR OFFICERS, DIRECTORS, AGENTS AND ASSOCIATES BE LIABLE TO YOU, SUBSCRIBER, ANY SUBSCRIBER AFFILIATE, OR ANY OTHER THIRD PARTY FOR: (I) INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, PUNITIVE DAMAGES OR ANY SIMILAR DAMAGES INCLUDING IN CONNECTION WITH OR RELATING TO THESE USER TERMS, THE SERVICES AND USE, PERFORMANCE AND OPERATION OF THE CLOUD SERVICE, (II) DAMAGES RESULTING FROM USE OF SUBSCRIBER DATA, PANI DATA OR OTHER RECOMMENDATIONS PROVIDED BY PANI; (III) LOSS OF DATA; (IV) LOST PROFITS OR LOST REVENUES; (V) BUSINESS INTERRUPTION; (VI) DAMAGES PURSUANT TO ANY THIRD PARTY TERMS AND CONDITIONS; OR (VII) CONTENT AND SERVICES OFFERED THROUGH THE SERVICES, REGARDLESS OF WHETHER PANI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE OR WHETHER SUCH DAMAGES ARE REASONABLY FORESEEABLE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR AGGREGATE LIABILITY AND THAT OF OUR AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS, FOR ANY CAUSES OF ACTION, LOSSES AND DAMAGES ARISING OUT OF OR RELATING TO THESE USER TERMS OR THE SERVICES WILL BE LIMITED TO FIFTY DOLLARS ($50).
IN JURISDICTIONS THAT DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR REQUIRE EXCLUSIONS AND/OR LIMITATIONS OF LIABILITY THAT ARE DIFFERENT THAN THOSE SET FORTH IN THIS SECTION 9, PANI’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. THE LIMITATIONS SET FORTH IN THIS SECTION 9 WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
You will indemnify, defend and hold us harmless against any claim brought by a third party against us or our affiliates, and our respective employees, officers, directors and agents, arising from or related to your use of the Services, your submission of Content, or your breach of these User Terms.
11. COMMUNICATIONS AND SECURITY
Unfortunately, no data transmission over the Internet can be guaranteed as secure. Although we strive to protect such information, we do not warrant and cannot ensure the security of any information which you transmit to us or via the Services. Accordingly, any information which you transmit to us is transmitted at your own risk. Nevertheless, once we receive your transmission, we will take commercially reasonable steps to preserve the security of such information.
12.1 Assignment: You will not assign these User Terms without our prior written consent. Any attempt to assign these User Terms not made in accordance with this clause will be void and without effect.
12.3 Updates to User Terms: We may amend these User Terms from time to time, in which case the updated User Terms will supersede prior versions. If we make a change to these User Terms, the updated User Terms will be posted on our website or otherwise made available through our Services. Please check the User Terms posted on our website from time to time to take notice of any changes we made, as they will be binding on you. Your continued access and use of the Services following the effective date of any such updated User Terms may be relied upon by us as your acceptance of any such amendment.
12.4 Severability and Waiver: If any provision in these User Terms is held by a court of competent jurisdiction to be unenforceable, such provision will be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by applicable law, and the remaining provisions of these User Terms will remain in effect. Our failure to enforce at any time any provision of these User Terms does not constitute a waiver of that provision or of any other provision of these User Terms.
12.5 Survival: Sections 1 (Privacy and Consent to Data Use), 2 (Eligibility), 5 (Ownership Rights and Restrictions), 6 (Subscriber Materials), 7 (Relationship between You, Us and Subscriber), 8 (Disclaimer of Warranties), 9 (Limitation of Liability), 10 (Indemnification) and 12 (General) will survive any termination or expiration of the User Terms.
12.6 Notices: All notices to be provided by us to you under these User Terms may be delivered in writing via: (a) email (b) mail (registered or certified, postage prepaid with receipt requested); (c) courier; or (d) personally. All notices will be deemed to have been given immediately upon delivery by electronic mail, or if otherwise delivered upon receipt or, if earlier, 2 business days after being deposited in the mail or dispatched by courier.
12.7 Force Majeure: Pani will not be liable for any failure to perform its obligations under this Agreement or any failure of the Services because of circumstances beyond the control of Pani, which such circumstances will include (without limitation) natural disaster, terrorism, riot, sabotage, labour disputes, war, any acts or omissions of any government or governmental authority, declarations of governments, laws, court orders, transportation delays, power or telecommunications failure not caused Pani.
12.8 Governing Law: These User Terms and your use of the Services will be governed exclusively by the laws of the Province of British Columbia and the federal laws of Canada applicable in British Columbia without regard to conflict of laws principles. You further agree that, despite being available from a variety of jurisdictions, the Services will be deemed solely based in the Province of British Columbia, Canada; and that the Services will be deemed to be passive in nature and not giving rise to personal jurisdiction over us in jurisdictions other than the Province of British Columbia. The parties irrevocably submit to the exclusive jurisdiction of the courts of the Province of British Columbia (Vancouver registry) for any actions or proceedings arising out of or relating to the enforcement of these Subscriber Terms. However, you agree that nothing in these User Terms precludes our application for injunctive remedies or other urgent legal relief in any jurisdiction.
Effective Date: May 4, 2021