THIS DOCUMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE READ IT CAREFULLY.
YOUR ACCESS TO AND US OF THE SERVICES WE MAKE AVAILABLE TO YOU ON THIS WEBSITE IS CONDITIONED UPON YOUR AFFIRMATION THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS AGREEMENT, AND YOUR ACCEPTANCE OF AND COMPLIANCE WITH THESE TERMS AND CONDITIONS. YOU AFFIRM THAT IF YOU PLACE AN ORDER ON BEHALF OF AN ORGANIZATION OR COMPANY, YOU HAVE THE LEGAL AUTHORITY TO BIND ANY SUCH ORGANIZATION OR COMPANY TO THESE TERMS AND CONDITIONS.
YOU MAY NOT OBTAIN SERVICES FROM THIS WEBSITE IF YOU (A) DO NOT AGREE TO THESE TERMS, (B) ARE NOT THE OLDER OF (i) AT LEAST 18 YEARS OF AGE OR (ii) LEGAL AGE TO FORM A BINDING CONTRACT WITH Panther Global, Inc., OR (C) ARE PROHIBITED FROM ACCESSING OR USING THIS WEBSITE OR ANY OF THIS WEBSITE'S CONTENTS OR SERVICES BY APPLICABLE LAW.
These terms and conditions (these “Terms”) apply to the purchase and sale of services through https://www.withpanther.com/ (the “Site”). These Terms are subject to change by Panther Global, Inc., a Delaware corporation, with offices located at 2261 Market Street, #4094, San Francisco CA, 94114 (referred to as “Service Provider”, “us”, “we”, or “our” as the context may require) without prior written notice at any time, in our sole discretion. Any changes to the Terms will be in effect as of the “Last Updated Date” referenced on the Site. You should review these Terms prior to purchasing any services that are available through this Site. Your continued use of this Site after the “Last Updated Date” will constitute your acceptance of and agreement to such changes. For purposes of these Terms, “Customer”, “you” and “your” means you as a user of the Service.
1.1 Service Provider shall provide to Customer the services (the “Services”) set out in one or more statements of work to be issued by Customer and accepted by Service Provider (each, a “Statement of Work”). The initial accepted Statement of Work is attached hereto as Exhibit A. Additional Statements of Work shall be deemed issued and accepted only if signed by an authorized representative of the Customer and of Service Provider.
1.2 For purposes of providing the Services under these Terms, Service Provider may contract with a third party which will serve as Customer’s employer of record (“Employer of Record”) as is necessary to permit Customer to employ individuals in countries other than Customer’s primary place of business, as is further described in each Statement of Work. Customer is and always will be designated as the work site employer and agrees that Employer of Record is a co-employer for purposes of carrying out the Services described in each Statement of Work. Customer’s employees are referred to as Work Site Employees (WSEs) throughout these Terms.
1.3 With regard to the contractual relationship between Customer and Service Provider, Customer agrees and acknowledges that, notwithstanding Service Provider’s, or Employer of Record’s as is applicable, signing an employment agreement with any WSEs, for purposes of these Terms and as between the parties, Customer (and not Service Provider) will be considered to be an employer of any WSE for purposes of any claims, including for claims of discrimination involving disability, race, sex, sexual harassment, religion, color, age, national origin, marital status, veteran status, retaliation, or for any other claim pursuant to any local, state or federal law regulation, unless the action is taken by Customer at the direction of Service Provider pursuant to a written corporate policy, procedure, or corporate direction that is unlawful under an applicable local in-country law.
2.1 Have sole responsibility for the day-to-day control and supervision of WSEs, as well as hiring, firing, disciplining, or promoting WSEs.
2.2 Properly classify employees as exempt or non-exempt under applicable wage and hour laws.
2.3 Maintain accurate records regarding time worked by WSEs and timely transmit compensation payment information to Service Provider for each workweek on a weekly basis including:
(i) wages, including whether salaried or hourly, and regular rate of pay;
(v) vacation pay;
(vi) sick pay;
(vii) paid time off;
(viii) paid leaves of absence; and;
(ix) severance payments;
2.4 Timely report to Service Provider any changes in its workforce, such as employees hired or terminated, and any changes in salary, hour, wages, or other compensation.
2.5 Provide and administer employee benefits not provided by Employer of Record, including all equity compensation plans, programs, and arrangements that provide for grants of stock options, restricted stock, performance awards, or other similar awards.
2.6 Maintain licenses that may be required of any WSEs.
2.7 Provide a safe work environment, in compliance with all applicable safety laws and regulations, and timely report any work-related injuries to Service Provider.
2.8 Provide to Service Provider financial assurance for Customer’s Payroll Obligations (defined below) in the form of a deposit in an amount equal to one-month payroll, employer payroll tax and any direct and indirect costs related to payroll for one month’s average payroll, as further described in the applicable Statement of Work (the “Deposit”). Employer of Record will retain the Deposit to guarantee performance by Customer of all Payroll Obligations for WSEs. If Customer should fail to pay Service Provider any amounts when due, Service Provider may apply the Deposit to the amount due. If any portion of the Deposit is so used or applied or if Customer’s Payroll Obligations increase, then within two (2) days after Service Provider gives Customer written notice, Customer shall deposit with Service Provider cash in an amount sufficient to replenish the Deposit to the original amount or the original amount plus Customer’s increased monthly Payroll Obligations, as is applicable. Should Customer fail to provide, within ten (10) business days of Service Provider’s request, the full amount of (i) the replenishment of applied amounts or (ii) additional financial assurance, Service Provider may immediately terminate these Terms without liability or further obligation. Any unapplied amounts of such Deposit will be returned to Customer within sixty (60) days of the effective date of termination or expiration of these Terms.
3.1 Service Provider shall provide the Services, or cause the Services to be provided, either directly or via the Employer of Record, as described on each Statement of Work, in a timely, workmanlike, and professional manner, which may include, without limitation:
(a) Payroll. Service Provider shall pay all wages, as reported by Customer, to WSEs through Service Provider's payroll, including the following from which Service Provider will make all required deductions and withholdings under applicable federal, state, international, and local laws: (a) salary or other base pay; (b) commission; (c) bonuses; (d) overtime pay; (e) vacation pay; (f) sick time pay; (g) paid time off; (h) paid leaves of absence; and (i) severance (collectively, “Payroll Obligations”).
(i) Customer acknowledges that in some countries health insurance coverage is required per local country regulations and requirements. Where required, Customer will offer coverage that is legally compliant through Service Provider or will provide Service Provider with satisfactory proof of such coverage.
(ii) Service Provider may, from time to time, make available employee benefit plans for adoption by Customer and benefits administration services as outlined in and at the rates set forth on a Statement of Work with respect to Customer's own employee benefit plans (collectively, the “Benefits”). Unless Customer elects to participate in the Service Provider employee benefit plans or selects Service Provider's benefits administration services as on a Statement of Work, all employee benefit plans and programs sponsored by Customer, regardless of whether they provide benefits to the WSEs, will be the sole responsibility of Customer.
(iii) If Customer chooses to become a participating employer in any Service Provider employee benefit plan, coverage of WSEs by such plan will be subject to the terms and conditions of such plan and to such modifications as may occur to such plans. Customer agrees, once coverage is made effective, that such coverage remains effective for a period of one year unless earlier terminated in accordance with this Section 3.1(b). Benefit plan cancellations require written notification at least sixty (60) days in advance and will incur a service charge equivalent to twenty-five percent (25%) of one month’s premium if not cancelled within such period; provided, however, that to the extent Service Provider is serving as broker of record with respect to Customer's insured employee benefit plans, Customer may not change the broker of record during the policy year. Customer is responsible for any charges by the plan carrier or its partners for cancellation of a policy. Subject to the foregoing termination right, Service Provider reserves the right to change any employee benefit plan which it offers to Customer (including the right to change carriers) and to raise the rates charged for such plans. If during the term of these Terms, Customer appoints a broker of record other than Service Provider as of the policy renewal date with respect to any of its insured employee benefit plans, Customer agrees and acknowledges that it will be responsible for paying any commissions that would have been paid to Service Provider’s subsidiaries as broker of record under such policy for the term of these Terms.
(iv) As a condition to participation in the Service Provider's group health plan, Customer agrees to cooperate fully with the Service Provider and its group health plan insurer with respect to completing any applicable underwriting questionnaire, to the extent permitted by law. If Customer adopts Service Provider's group health plan for its employees, including WSEs, Service Provider agrees to assume responsibility for the current COBRA participants on Customer's group health plan in effect as of the date Customer first requests the Services on the Site (the “Effective Date”) (current COBRA participants), to the extent such COBRA participants have been listed by Customer on the applicable Statement of Work and provided current COBRA participants were eligible for coverage under Customer's plan in accordance with federal law. Should Customer at any time obtain any form of group employee benefit coverage from an insurance carrier, another employee leasing company/professional employer or otherwise, which will provide group health coverage to any of its employees, Customer will assume full responsibility for the continuation of coverage under COBRA for the current COBRA participants in addition to any employees who may elect COBRA coverage under Service Provider's plans during the term of these Terms, for the remainder of their COBRA eligibility period. Customer agrees that upon termination or expiration of these Terms, Customer will immediately replace the Service Provider group health plan in which Customer was a participating employer with group health plan coverage for Customer's employees, including the former WSEs. Should Customer not obtain group health coverage immediately upon termination or expiration of these Terms for any reason, Customer will pay to Service Provider each month or partial month the sum of FIVE HUNDRED DOLLARS ($500) per COBRA participant under Service Provider's employee benefit plans. Such fee will also be applicable to each family member/dependent of such Covered Employee who is receiving COBRA benefits through Service Provider where the former Covered Employee is not receiving COBRA benefits and is in addition to the premium payment payable by the applicable employee and/or family member/dependent. Customer acknowledges that this amount represents a reasonable estimation of fees to cover Service Provider's expense in extending continued health care coverage to the WSEs and COBRA participants and is not a penalty. Nothing in this provision will be construed or interpreted as precluding or limiting Service Provider's right to pursue damages arising as a result of Customer's failure to obtain and provide group health coverage as set forth herein.
3.2 While on Customer’s premises, Service Provider will comply with Customer’s reasonable workplace safety and physical security processes and procedures for contractors that have been provided in writing in advance and acknowledged in writing by Service Provider before entering into a Services transaction. The terms of any such policy or procedure for contractors will not modify the terms of a Services transaction or alter the scope of any agreed Service.
3.3 Notwithstanding any other term herein, Service Provider will comply (and will cause its subcontractors and affiliates to comply ) with laws applicable to Service Provider in its role as a service provider to Customer (and not as an employer of WSEs) to the extent relating to Service Provider’s performance of Services; and Customer has the right to rely on any guidance that Service Provider provides to Customer pertaining to such laws, so long as Customer adheres to such guidance with respect to such laws. Customer will comply with laws applicable to Customer’s business to the extent relating to the performance of Customer’s obligations and receipt of Services. Unless otherwise expressly agreed in a Statement of Work and as permitted by applicable law, Service Provider is not performing Customer’s regulatory or management obligations, including the identification and interpretation of laws and regulations applicable to Customer’s business.
4.1 In consideration of the provision of the Services by the Service Provider and the rights granted to Customer under these Terms, Customer shall pay the service fees set out in the applicable Statement of Work (the “Service Fees”). Payment to Service Provider of such fees and the reimbursement of Expenses pursuant to this Section 4 shall constitute payment in full for the performance of the Services. Unless otherwise provided in the applicable Statement of Work, said fee will be payable within thirty (30) days of receipt by the Customer of an invoice from Service Provider.
4.2 By the fifth (5th) of each calendar month, Customer shall pay Service Provider an amount equal to Customer’s Payroll Obligations, cost of Benefits, foreign exchange fees, and any tax obligations related thereto, as further described on the applicable Statement of Work (Collectively, the “Monthly Payroll Obligations”).
4.3 Customer shall reimburse Service Provider for all reasonable expenses incurred in accordance with the Statement of Work (“Expenses”), within five (5) days of receipt by the Customer of an invoice from Service Provider accompanied by receipts and reasonable supporting documentation.
4.4 Customer shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Customer hereunder; provided, that, in no event shall Customer pay or be responsible for any taxes imposed on, or regarding, Service Provider's income, revenues, gross receipts, personnel, or real or personal property or other assets.
4.5 Customer shall pay a charge of two hundred fifty US dollars ($250) per day for each late payment. Customer shall also reimburse Service Provider for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys' fees. Each ACH, SEPA, check or reverse wire fee for insufficient funds will be billed at five hundred US dollars ($500) plus ten percent (10%) of the outstanding invoice total and will be due immediately upon Customer’s receipt of notice of such fee. An unpaid balance will also be subject to periodic charge equal to the lesser of (i) one and one-half percent (1.50%) per calendar month, or portion thereof and (ii) the maximum amount permitted by applicable law, until paid in full. In addition to all other remedies available under these Terms or at law (which Service Provider does not waive by the exercise of any rights hereunder), Service Provider shall be entitled to suspend the provision of any Services if the Customer fails to pay any amounts when due hereunder.
5.1 Service Provider warrants that it shall perform the Services:
(a) In accordance with the terms and subject to the conditions set out in the respective Statement of Work and these Terms.
(b) Using personnel of commercially reasonable skill, experience, and qualifications.
(c) In a timely, workmanlike, and professional manner in accordance with generally recognized industry standards for similar services.
5.2 Service Provider's sole and exclusive liability and Customer's sole and exclusive remedy for breach of this warranty shall be as follows:
(a) Service Provider shall use reasonable commercial efforts to promptly cure any such breach; provided, that if Service Provider cannot cure such breach within a reasonable time (but no more than 30 days) after Customer's written notice of such breach, Customer may, at its option, terminate the Agreement by serving written notice of termination in accordance with Section 8.2.
(b) In the event the Agreement is terminated pursuant to Section 5.2(a) above, Service Provider shall within 30 days after the effective date of termination, refund to Customer any fees paid by the Customer as of the date of termination for the Service or Deliverables (as defined in Section 6 below), less a deduction equal to the fees for receipt or use of such Deliverables or Service up to and including the date of termination on a pro-rated basis and less the Deposit.
(c) The foregoing remedy shall not be available unless Customer provides written notice of such breach within 30 days after delivery of such Service or Deliverable to Customer.
5.3 SERVICE PROVIDER MAKES NO WARRANTIES EXCEPT FOR THAT PROVIDED IN SECTION 5.1, ABOVE. ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, ARE EXPRESSLY DISCLAIMED.
6.1 Customer is, and shall be, the sole and exclusive owner of all right, title, and interest in and to the documents, work product and other materials that are delivered to Customer under these Terms or prepared by or on behalf of the Service Provider in the course of performing the Services, including any items identified as such in the applicable Statement of Work (collectively, the “Deliverables”), including all Intellectual Property Rights therein. Service Provider agrees, and will cause its Service Provider Personnel to agree, that with respect to any Deliverables that may qualify as "work made for hire" as defined in 17 U.S.C. §101, such Deliverables are hereby deemed a "work made for hire" for Customer. To the extent that any of the Deliverables do not constitute a "work made for hire", Service Provider hereby irrevocably assigns, and shall cause the Service Provider Personnel to irrevocably assign to Customer, in each case without additional consideration, all right, title, and interest throughout the world in and to the Deliverables, including all Intellectual Property Rights therein. “Intellectual Property Rights” shall means all intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, and derivative works.
6.2 Service Provider and its licensors are, and shall remain, the sole and exclusive owners of all right, title, and interest in and to the Pre-Existing Materials, including all Intellectual Property Rights therein. Service Provider hereby grants Customer a limited, irrevocable, perpetual, fully paid-up, royalty-free, non-transferable, non-sublicenseable, worldwide license to use, perform, display, execute, reproduce, distribute, transmit, modify (including to create derivative works), import, make, have made, sell, offer to sell, and otherwise exploit any Pre-Existing Materials to the extent incorporated in, combined with or otherwise necessary for the use of the Deliverables solely to the extent reasonably required in connection with Customer's receipt or use of the Services and Deliverables. All other rights in and to the Pre-Existing Materials are expressly reserved by Service Provider. “Pre-Existing Materials” means all documents, data, know-how, methodologies, software, and other materials, including computer programs, reports, and specifications, provided by or used by Service Provider in connection with performing the Services, in each case developed or acquired by the Service Provider prior to the commencement of these Terms.
6.3 Customer and its licensors are, and shall remain, the sole and exclusive owner of all right, title, and interest in and to the Customer Materials, including all Intellectual Property Rights therein. Service Provider shall have no right or license to use any Customer Materials except solely during the Term of the Agreement to the extent necessary to provide the Services to Customer. All other rights in and to the Customer Materials are expressly reserved by Customer. “Customer Materials” any documents, data, know-how, methodologies, software, and other materials provided to Service Provider by Customer.
From time to time during the Term of these Terms, either Party (as the “Disclosing Party”) may disclose or make available to the other Party, or such Party’s affiliates and subcontractors (such as the Employer of Record) (collectively, as the “Receiving Party”), non-public, proprietary, and confidential information of Disclosing Party that, if disclosed in writing or other tangible form is clearly labeled as “confidential,” or if disclosed orally, is identified as confidential when disclosed and within 10 days thereafter, is summarized in writing and confirmed as confidential (“Confidential Information”); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party's breach of this Section 7; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party's possession prior to Disclosing Party's disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information. The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party's Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party's Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under these Terms; and (z) not disclose any such Confidential Information to any person or entity, except to the Receiving Party's Group who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under these Terms.
If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party's sole cost and expense, a protective order or other remedy. For purposes of this Section 7 only, Receiving Party's Group shall mean the Receiving Party's affiliates and its or their employees, officers, directors, shareholders, partners, members, managers, agents, independent contractors, service providers, sublicensees, subcontractors, attorneys, accountants, and financial advisors.
8.1 These Terms shall commence as of the Effective Date and shall continue thereafter until terminated pursuant to Section 8.2 or Section 8.3.
8.2 Either Party may terminate these Terms, effective upon written notice to the other Party (the “Defaulting Party”) if the Defaulting Party:
(a) Materially breaches these Terms, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within 30 days after receipt of written notice of such breach.
(b) Becomes insolvent or admits its inability to pay its debts generally as they become due.
(c) Becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven business days or is not dismissed or vacated within 45 business days after filing.
(d) Is dissolved or liquidated or takes any corporate action for such purpose.
(e) Makes a general assignment for the benefit of creditors.
(f) Has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
8.3 Notwithstanding anything to the contrary in Section 8.2(a), Service Provider may terminate these Terms on written notice if Customer fails to pay any amount when due hereunder and such failure continues for fifteen (15) days after Customer's receipt of written notice of nonpayment;
8.4 Notwithstanding anything to the contrary in Section 8.2(a), Service Provider may terminate these Terms for any reason, or no reason, upon sixty (60) days’ advance written notice to Customer;
8.5 The rights and obligations of the Parties set forth in this Section 8.5 and in Sections 5, 6, 7, 9, and 13, and any right or obligation of the Parties in these Terms which, by its nature, should survive termination or expiration of these Terms, will survive any such termination or expiration of these Terms.
9.1 IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
9.2 IN NO EVENT SHALL SERVICE PROVIDER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO SERVICE PROVIDER PURSUANT TO THESE TERMS IN THE SIX MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
During the term of these Terms, Customer shall, at its own expense, maintain and carry insurance with financially sound and reputable insurers, in full force and effect that includes, but is not limited to, commercial general liability in a sum no less than $1,000,000, commercially reasonable amounts of personal property insurance and workers’ compensation insurance with financially sound and reputable insurers. Upon Service Provider's request, Customer shall provide Service Provider with a certificate of insurance from Customer's insurer evidencing the insurance coverage specified in these Terms. The certificate of insurance shall name Service Provider as an additional insured. Service Provider shall provide Customer with twenty (20) days' advance written notice in the event of a cancellation or material change in Service Provider's insurance policy. Except where prohibited by law, Customer shall require its insurer to waive all rights of subrogation against Service Provider's insurers and Service Provider.
These Terms, including and together with any related Statements of Work, exhibits, schedules, attachments and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter. The parties acknowledge and agree that if there is any conflict between the terms and conditions of these Terms and the terms and conditions of any Statement of Work, the terms and conditions of these Terms shall supersede and control.
All notices, requests, consents, claims, demands, waivers and other communications under these Terms (each, a “Notice”, and with the correlative meaning “Notify”) must be in writing and addressed to the other Party at its address set forth below (or to such other address that the receiving Party may designate from time to time in accordance with this Section). Unless otherwise agreed herein, all Notices must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in these Terms, a Notice is effective only (a) on receipt by the receiving Party; and (b) if the Party giving the Notice has complied with the requirements of this Section 12.
Notice to Service Provider:
2261 Market Street, #4094, San Francisco CA, 94114
Attention: Chief Executive Officer, Matthew Redler
13.1 Customer, does hereby agree to indemnify, hold harmless, protect and defend Service Provider, and all of Service Provider's subsidiaries, affiliates subcontractors (including an Employer of Record), and related entities, and their respective former, current and future shareholders, employees (excluding the WSEs), attorneys, officers, directors, agents and representatives (“Service Provider Indemnified Parties”) from and against any and all claims, demands, damages (including liquidated, punitive and compensatory), injuries, deaths, causes of actions, costs and expenses (including reasonable attorney's fees and expenses at all levels of proceedings), administrative fines, losses and liabilities of whatever nature (including liability to third parties), and all other consequences of any sort (collectively, “Losses”), incurred by the Service Provider Indemnified Parties that may be asserted or brought against any Service Provider Indemnified Party by a third party and/or public administration, including but not limited data protection authorities, arising out of or related to Customer’s gross negligence, willful misconduct, or breach of these Terms. Without in any way limiting the foregoing, Customer agrees to indemnify, hold harmless, protect and defend Service Provider and all Service Provider Indemnitees against any and all aspects of the employment of WSEs, or the termination of employment of such WSEs, including claims relating to any of the following: (i) any violation of applicable laws protecting persons or members of protected classes or categories, including laws or regulations prohibiting discrimination or harassment on the basis of a protected characteristic; (ii) liability arising or resulting from the employment of WSEs by Customer or its affiliates; (iii) payment or failure to pay any salary, wages or other cash compensation due and owing to any WSE; (iv) employee pension or other benefits of any WSEs; and (v) other aspects of the employment relationship of WSEs with Customer or its affiliates or the termination of such relationship, including claims for unfair, wrongful discharge, and/or constructive dismissal and claims for breach of express or implied employment agreement, and claims for workers’ compensation; except, in each case under this paragraph, to the extent resulting from (A) the actions or omissions of Service Provider, or (B) the failure of Service Provider to comply with its obligations under these Terms.
13.2 Service Provider hereby unconditionally indemnifies, holds harmless, protects and defends Customer and its shareholders, employees, attorneys, officers, directors, agents and representatives (“Customer Indemnified Parties”) from and against any and all Losses, that may be asserted or brought against Customer Indemnified Parties by a third party arising out or resulting from Service Provider’s gross negligence, willful misconduct, or material breach of these Terms. The aggregate amount of all Losses for which Service Provider shall be liable pursuant to Section 12.2 shall not exceed the aggregate amounts paid or payable to Service Provider pursuant to these Terms in the six (6) months preceding the event giving rise to such claim.
Throughout the term of these Terms and at all times in connection with its actual or required performance of the Services hereunder, the Parties shall perform its respective obligations hereunder in accordance with the data processing requirements set out in Exhibit A.
If any term or provision of these Terms is found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction.
No amendment to or modification of or rescission, termination or discharge of these Terms is effective unless it is in writing, identified as an amendment to or rescission, termination or discharge of these Terms and signed by an authorized representative of each Party.
No waiver by any Party of any of the provisions of these Terms shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in these Terms, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from these Terms shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
Customer shall not assign, transfer, delegate or subcontract any of its rights or delegate any of its obligations under these Terms without the prior written consent of Service Provider. Any purported assignment or delegation in violation of this Section 18 shall be null and void. No assignment or delegation shall relieve the Customer of any of its obligations under these Terms. Service Provider may assign any of its rights or delegate any of its obligations to any affiliate or to any person acquiring all or substantially all of Service Provider's assets without Customer's consent.
These Terms is binding on and inures to the benefit of the Parties to these Terms and their respective permitted successors and permitted assigns.
Customer grants to Service Provider a limited, non-exclusive, non-transferable (except as provided in Section 18), non-sublicensable, and royalty-free license during the Term to display Customer's Marks on Service Provider’s website https://www.withpanther.com/, and any other website owned by Service Provider related to the Services, and to identify Customer as a customer of Service Provider. “Marks” shall mean any trademark, trade name, service mark, design, logo, domain name, or other indicator of Customer’s business.
The relationship between the Parties is that of independent contractors. The details of the method and manner for performance of the Services by Service Provider shall be under its own control, Customer being interested only in the results thereof. The Service Provider shall be solely responsible for supervising, controlling and directing the details and manner of the completion of the Services. Nothing in these Terms shall give the Customer the right to instruct, supervise, control, or direct the details and manner of the completion of the Services. The Services must meet the Customer's final approval and shall be subject to the Customer's general right of inspection throughout the performance of the Services and to secure satisfactory final completion. Nothing contained in these Terms shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
These Terms benefits solely the Parties to these Terms and their respective permitted successors and assigns and nothing in these Terms, express or implied, confers on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
The Parties hereby designate the Service Provider Indemnified Parties and the Customer Indemnified Parties as third-party beneficiaries of Section 13, having the right to enforce Section 13.
These Terms and all related documents including all exhibits attached hereto, and all matters arising out of or relating to these Terms, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the State of Delaware, United States of America (including its statutes of limitations), without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Delaware.
Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind whatsoever against the other Party in any way arising from or relating to these Terms, including all exhibits, schedules, attachments and appendices attached to these Terms, and all contemplated transactions, including contract, equity, tort, fraud and statutory claims, in the courts of the State of Delaware sitting in the City of Wilmington, County of New Castle, and any appellate court from any thereof. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation or proceeding only in the courts of the State of Delaware sitting in the City of Wilmington, County of New Castle. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
Each Party acknowledges that any controversy that may arise under these Terms, including exhibits, schedules, attachments, and appendices attached to these Terms, is likely to involve complicated and difficult issues and, therefore, each such Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to these Terms, including any exhibits, schedules, attachments or appendices attached to these Terms, or the transactions contemplated hereby.
These Terms may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. Notwithstanding anything to the contrary in Section 12, a signed copy of these Terms delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of these Terms.
The Service Provider shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached these Terms, for any failure or delay in fulfilling or performing any term of these Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Service Provider including, without limitation, acts of God, flood, fire, earthquake, explosion, pandemics, epidemics, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
1. The Parties, as established in Section 14 of the Agreement, commit to act as data controllers and guarantee that they will observe the safeguards and requirements of the applicable data protection laws ("Data Protection Laws") in the processing of WSE's personal data ("Data") in the context of the performance of the Services. For the purposes of the Agreement, Data Protection Laws shall be understood as comprising the relevant applicable ones and, at least, Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC ("GDPR"), as well as all decisions, opinions, instructions, guidelines, resolutions issued by the relevant data protection authorities.
2. The Parties hereby warranty they shall:
2.1 abide by all information duties towards WSEs ("Data Subjects"), irrespective of the Data being collected from the latter or not;
2.2 obtain the relevant consents for the processing of the Data, in particular as they refer to any potential international transfer of the Data that may be necessary for the provision of the Services;
2.3 process the Data solely for the purposes and within the limits contained in the Agreement;
2.4 as required by the Data Protection Laws, implement administrative, physical and technical safeguards to protect the Data that are no less rigorous than accepted industry practices and will immediately (in any event no later than 24 hours after being aware) notify each other in the event of any security breach and use best efforts to immediately remedy such breach and cooperate as required by the other Party;
2.5 assist the other Party in keeping adequate and updated records of the processing activities carried out on the Data;
2.6 ensure the rights of the Data Subjects and shall communicate and cooperate with each other in relation to any exercise of the Data Subjects' rights;
2.7 ensure that appropriate agreements in accordance with the Data Protection Laws are in place with any data processor that processes personal data on their behalf;
2.8 ensure that all employees involved in the data processing respect the confidentiality of the data in accordance with the Data Protection Laws during and after termination of the employment relationship. For this purpose, each controller shall instruct its employees in the relevant data protection provisions and commit them to data secrecy;
2.9 inform each other immediately and accurately if they find any errors, infringements or discrepancies in connection with statutory data protection laws during the inspection of work results, processing activities or other occasions
3. Customer shall:
3.1 process the Data only as required and instructed by Service Provider for the provision of the Services, refraining from using the Data for any purpose other than the performance and use of the Service;
3.2 notify in advance of the use of any data processor that is located outside of the European Economic Area. Customer shall inform Service Provider in good time of any intended change regarding the involvement or replacement of data processors;
3.3 indemnify, hold harmless, protect and defend Service Provider and the Employer of Record, assuming all liability, against and all claims, demands, damages (including liquidated, punitive and compensatory), injuries, deaths, causes of actions, costs and expenses (including reasonable attorney's fees and expenses at all levels of proceedings), administrative fines, losses and liabilities of whatever nature (including liability to third parties), and all other consequences of any sort that may be asserted or brought against the Service Provider and/or the Employer of Record by a third party and/or public administration, in particular any data protection or privacy authorities, arising out of Customer’s negligence, willful misconduct, breach of these Terms, or conduct that leads to the generation of liabilities of any kind against the Service Provider.
4. Notwithstanding the above, Service Provider shall be considered responsible for any data protection claim filed by the WSE and/or any third party either before data protection authorities or courts, based on infringements of applicable data protection laws arising out of Service Provider's course of action, and Customer shall be considered responsible for any data protection claim filed by the WSE and/or any third party either before data protection authorities or courts, based on infringements of applicable data protection laws arising out of Customer's course of action.