Blackpanda Incident Response One (IR-1) Terms of Service
CURRENT VERSION: 18 September 2023
Important: Where these terms have been translated to help with local language understanding, the English version of our Terms of Service available at blackpanda.com/legal shall always prevail.
These terms: These terms and conditions of our incident response services as provided by us (“Blackpanda”, “we” or “us”) pursuant to the IR-1 protection subscription (“IR-1”) Solution (as defined under the Platform Terms of Use). Unless otherwise noted, these Terms of Service shall apply whether you have paid for the IR-1 directly or through our partners for your benefit. This schedule and all referenced agreements set out herein, together with our Confirmation Email to your designated contact email address, shall form the entire agreement between Blackpanda and you. In the event of any inconsistency between the Term of Service and the Confirmation Email (such as specific or unique modifications to these Terms of Service), the Confirmation Email shall govern how we service you under the IR-1.
Other terms: Our (a) Platform Terms of Use and (b) Privacy and Data Policy, will also apply to our IR-1 product. These are available at https://www.blackpanda.com/legal.
1. Subscription of Your IR-1
1.1 By subscribing for IR-1, you unconditionally accept and agree to be bound by the latest version of the Terms of Service as published and made available at https://www.blackpanda.com/legal.
1.2 These Terms of Service only govern the relationship between us and you. The dealings between you and any other third party are not governed by these Terms of Service.
1.3 If you are registering for a IR-1 on behalf of a corporate entity or another individual (the “Principal”), you represent and warrant that you have been validly authorized to (a) register for the IR-1 on behalf of the Principal, and (b) agree to and bind the Principal to these Terms of Service. You shall ensure that the Principal complies with all the terms and conditions in these Terms. Any breach of these Terms by a Principal shall be deemed to be a breach by you of these Terms. Any reference to “you” or “your” as used in these Terms shall include any and all Principals.
1.4 In order to complete your subscription for the IR-1, we will require you to provide the following information:
(a) Details of your business;
(b) Your business email address. If you do not have any, please provide your personal email address. It is important that you provide to us your business email address as we will use this to determine your apex domain name which is used or integral to your business. By understanding your apex domain name, we are able to respond more quickly and better understand your business needs, cyber infrastructure and risks in the event you notify us of a Cyber Security Incident;
(c) Any subdomain or ancillary domain names which your business may also use. Examples of such domain names would include domain names which you used to (but no longer) host your business website or email addresses at.
1.5 You should receive the Confirmation Email immediately after a successful submission of your registration. Your IR-1 account may be registered or created for you on behalf of you by our partner resellers and distributors. If you have not received your Confirmation Email within this time period or have difficulties in the registration process, please reach out to us at https://ir1.blackpanda.com/pages/contact-us
1.6 Beta
(a) The Platform is currently launched in a Closed Beta with our key partners. This does not affect or compromise our commitment and service standards under our obligations under these Terms of Service.
(b) We understand and anticipate that the registration procedure may have unnecessary technical delays during our Closed Beta phase. We also understand that this may unfairly impact the commencement of your IR-1 Term. Our commitment is therefore to provide you with your Confirmation Email at the earliest possible and always as set out in Section 1.6. In the event the registration process was not properly or accurately completed, we will assist you to rectify the submitted data as a matter of goodwill and in good faith in the event you suffer a Qualifying Cyber Security Incident.
2. General Coverage of IR-1
During the IR-1 Term:
(a) Blackpanda shall provide you with “Cyber Security Incident Response Services” (as further described at 3A) in the event you suffer a Qualifying Cyber Security Incident and decide to use your Activation Credit.
A “Qualifying Cyber Security Incident” is a Cyber Security Incident that must meet all of the following criteria:
- This Cyber Security Incident has resulted in the unauthorized access of at least one of your Endpoints. An Endpoint is any physical or virtual computing device or computing environment that communicates with a network to which it is connected.
- This Cyber Security Incident commences during, is discovered by you during, and is informed to Blackpanda during your IR-1 Term.
- The Cyber Security Incident would fall under one of the following categories or descriptions: basic web application(s) attacks, system intrusion, business email compromise, malware, or ransomware.
- The Cyber Security Incident is not a denial-of-service attack (DDoS or DoS).
Your “Activation Credit” is a single-use credit for you to provide to use in the event you require Blackpanda to respond to a Qualifying Cyber Security Incident. It cannot be used for a Cyber Security Incident which does not meet the qualifying criteria above. The Activation Credit is deemed used when you submit a valid notification to us. We will refund any Activation Credit(s) used for a Cyber Security Incident which is not a Qualifying Cyber Security Incident.
(b) Blackpanda shall also provide you with preferential rates for any of our cyber security technical and consultancy services. These services can be used as prehabilitation or preventative measures. These services can also be used if you have utilized all Activation Credit(s) or for a Cyber Security Incident which is not a Qualifying Cyber Security Incident.
1. A “Cyber Security Incident” is an incident or event whereby an action is taken through the use of an information system or network that would result in an actual or potentially adverse effect on an information system, network, and/or the information residing therein.
2. Examples of Endpoints include but are not limited to laptops, mobile phones and tablets, desktops, cloud servers, on-premises servers, software-as-a-service services.
3A. Our Cyber Security Incident Response Services
If during the IR-1 Term you submit a valid notification to Blackpanda that you have experienced a Qualifying Cyber Security Incident, we shall provide to you with the following Cyber Security Incident Response Services to identify, contain and report on the damage and loss you may have suffered following the Cyber Security Incident.
These services are SUBJECT ALWAYS to our (a) reasonable availability at the time of your report; and (b) our professional opinion and expertise on a proportionate response to your Cyber Security Incident. This ensures that all our customers receive the relevant Blackpanda cyber incident responder for their Cyber Security Incident.
(a) Cyber Security Incident Triage Services:
A Blackpanda cyber incident responder shall triage the Qualifying Cyber Security Incident, providing a preliminary classification of the incident based on industry standards.
We will provide you with a general plan of action and recommendations for handling the Qualifying Cyber Security Incident based on our professional assessment and triage.
(b) Cyber Security Containment Services:
In certain occasions, the Cyber Security Incident may still be ongoing. This means that there is continued unauthorized access of at least one of your Endpoints. Our ability to identify and assist with such Active incidents will depend on your cooperation and our ability to access your information systems and networks in a timely manner.
We will use our reasonable efforts to respond and contain an Active Cyber Security Incident. Due to the nature of Active Cyber Security Incidents, we are unable to warrant that we are able to respond to or contain the Active Cyber Security Incident completely or even at all. This is because not all Active Cyber Security Incidents are the same.
(c) Basic Remediation Advisory Services:
We will also provide you with recommendations and basic advice which you can take on board to improve the vulnerability which gave rise to the Cyber Security Incident. However, depending on the vulnerability which caused the Cyber Security Incident – not all proposed steps are remediable without additional cost and expense (whether for further professional services and analysis or as a result of additional requirements you may not have). Where possible, we will highlight these costs and expenses and use our reasonable efforts to advise you. We will not incur any costs and expenses without your express consent to do so. It is important for you to consider and understand Section 4(a) below.
3B. Our Cyber Security Incident Response Deliverables
It is our service promise that each IR-1 client will receive, in event of a Qualifying Cyber Security Incident, the following deliverables:
- Within four (4) hours of receiving the notification, we shall acknowledge the Cyber Security Incident by way of email.
- Within twenty-four (24) hours of receiving the notification, we shall arrange an incident responder to triage the Cyber Incident.
- Within forty-eight (48) hours of receiving the notification, we shall provide you with our plan of action including initial recommendations for handling the Cyber Security Incident.
UNLESS otherwise agreed to by our Blackpanda service team, all Cyber Security Incident Response Services or deliverables shall be delivered remotely. Please note that Cyber Incident Response Services or deliverables that are agreed to be delivered on-site may come at an agreed additional charge.
4. Limitation of Services and Coverage under your IR-1
IR-1 is packaged and developed as an entry-level cyber security solution for small-to-medium businesses and enterprises. We believe all businesses should have the benefit of cyber security experts. Our IR-1 Cyber Security Incident Response Services are to provide a baseline solution for your business.
Under the IR-1 Activation Credit, Blackpanda provides Cyber Security Incident Response Services and deliverables for up to the first 500 affected Endpoints.
It is important for you to note that in the event you utilize your Activation Credit under the IR-1, Blackpanda DOES NOT provide:
(a) Eradication Services: After an incident has been contained, eradication is a step that is sometimes necessary to eliminate components of the incident, such as deleting malware and disabling breached user accounts, as well as identifying and mitigating all vulnerabilities that were exploited. This may involve identifying all affected Endpoints (which involves analyzing Endpoints that were not involved in the original triage). For some incidents, eradication is either not necessary or is not performed.
(b) Remediation Services: Remediation occurs when we identify vulnerabilities within your system or data and provide a corrective action plan and take steps to resolve the vulnerability. This would also include a schedule for resolving the vulnerability and allows for appropriate testing. Under the IR-1, we only offer basic advice. We do not offer action plans nor take any steps or implement any changes on your behalf on your systems and Endpoints.
(c) Recovery Services: Cyber Security recovery addresses the steps your business will take to reconstitute or recover assets which may have been damaged, compromised or lost after a Cyber Security Incident.
(d) Restoration of Business Operation Services: Restoration refers to our development of plans for your implementation for the restoration in a timely manner of any capabilities or services that are impaired due to a Cyber Security Incident. This is sometimes referred to as “recovery” by other industry experts, such as the US National Institute of Standards and Technology (NIST).
(e) Ransomware Negotiation Services: The services relating to the negotiation and payment (if any) to ransomware threat actors are not covered under the IR-1.
5. Qualifying Cyber Security Incident
In the event of a Qualifying Cyber Security Incident, you may obtain our Cyber Security Incident Response Services (details set out at Section 3 above) by submitting a notification to us through your IR-1 dashboard. If you have difficulties in the notification process, please contact us via email at ir1-support@blackpanda.com.
You must, upon request, present your Confirmation Email and any of the following (where applicable): (i) sales receipt for IR-1, (ii) notification email from our partners confirming your IR-1 Registration Code or Order Number. These requests are, among other reasons, to verify the identity of your representatives.
6. Your Consent to Scans and Tests
PLEASE READ THIS SECTION 6 CAREFULLY AND THOROUGHLY
6.1 Our Tests:
As part of our incident response services, Blackpanda may from time to time conduct security and vulnerability scans or such continuous monitoring of your Endpoints and attack surfaces. These are “Tests”. A Test may include, among other things, information gathering, crawling, fingerprinting, fuzz testing, deploying of test scripts and introducing other non-intrusive penetration tests. The results of such Tests will be kept in accordance with Section 11.4.
An attack surface is your apex domains and subdomains, including other domains and IP-addresses such domains point to, and all associated information, such as but not limited to DNS records, open ports and applications and services run on them. These attack surfaces are where an attacker can try to enter, cause an effect on, or extract data from your systems.
6.2 Your Consent:
You acknowledge and agree that the purpose of such Tests are to, as applicable, monitor and strengthen the security of your Internet-facing assets and/or strengthen the security of your external network Attack Surface. Accordingly, we may, when performing a Test, among other things, perform crawling, fuzz testing, authenticated testing, deploy test script, and introduce other non-intrusive penetration tests for the limited purpose of revealing security vulnerabilities in your Endpoints. You agree and acknowledge that the provision of the Tests in accordance with these Terms may lead to detrimental impact on your Endpoints. By purchasing and using our IR-1 product, you are responsible for the initiation of all Tests and the outcome of the Tests and for any inconveniences, interruptions or other negative consequences thereof.
6.3 Reports:
WITHOUT PREJUDICE TO ANY OTHER TERM TO THE CONTRARY, PLEASE NOTE THAT USE OF ANY TEST RESULTS OR REPORTS IS NOT RECOMMENDED IN OR IN ASSOCIATION WITH SAFETY CRITICAL SYSTEMS AND NETWORKS WHERE FAILURE TO MAINTAIN THE SECURITY OF YOUR SYSTEM AND NETWORK CAN REASONABLY BE EXPECTED TO RESULT IN DEATH, PERSONAL INJURY, LOSS OF PROPERTY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.
THE TEST SOLUTIONS (AND WHERE APPLICABLE, TESTS SOLUTIONS DATA) ARE OFFERED ON AN “AS IS” BASIS, WITHOUT ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NON-INFRINGEMENT, OR THOSE ARISING BY LAW, STATUTE, USAGE OF TRADE, OR COURSE OF DEALING. YOU ACKNOWLEDGE AND AGREE THAT YOU SHALL ASSUMES ALL RISK AS TO THE RESULTS AND PERFORMANCE OF THE SOLUTIONS AND SOLUTIONS DATA.
7. Your Responsibilities
PLEASE READ THIS SECTION 7 CAREFULLY AND THOROUGHLY
7.1 Your Cooperation:
To receive service or support under the Plan, you agree to (i) provide your Registration Code or Order Number (as the case may be and at our discretion) and a copy of the original proof of purchase of the IR-1, (ii) provide information about the symptoms and causes of the issues with the Cyber Security Incident and the affected Endpoints (iii) respond to requests for information needed to diagnose or service the Endpoint, and (iv) to adhere to any reasonable requests and instructions we may provide to you in our professional discretion and expertise. You agree that you shall or procure any third parties to provide all reasonable access requested by Blackpanda to the relevant Endpoints in order to perform the Cyber Security Incident Response Services. You further agree that our ability to provide our Cyber Security Incident Response Services in an effective and/or timely manner shall depend on your adherence to this Section 7.1.
7.2 General Warranties:
(a) You agree that your registration of the IR-1, your agreement to these Terms of Service, and your performance of your obligations under these Terms of Service will not and are not likely to (i) result in a breach of, or give any third party a right to terminate or modify or result in the creation of any encumbrance under any agreement, license or other legal instrument or (ii) result in a breach of any applicable laws, order, judgment or decree of any court, government agency or regulatory body to which you are a party or your assets are bound.
(b) You agree that except as expressly provided under these Terms of Service or the other terms and conditions referenced herein, there are no conditions, warranties or other terms binding on you and us with respect to the services contemplated under these Terms of Service. Any condition, warranty or other term in this regard that might otherwise be implied or incorporated under these Terms of Service whether by the applicable laws or otherwise is, to the maximum extent permitted by applicable laws, excluded from these Terms of Service.
7.3 Specific Warranties relating to AML and Economic Sanctions
(a) You confirm that you and your respective officers, employees and agents (where applicable) have conducted your business in accordance with all applicable laws and regulations including (anti-bribery laws, anti-money laundering laws and economic sanctions) and there is no law, statute, order, decree or judgment of any court, government agency or regulatory body outstanding against you and/or your respective officers, employees and/or agents. You further confirm that there are no investigations, actions, suits or proceedings against you in relation to anti-bribery laws, anti-money laundering laws and economic sanctions.
(b) You confirm that you, your respective officers, employees and/or agents are not sanctioned persons.
(c) If Blackpanda in its reasonable discretion is of the view that you are in breach of Sections 7.3(a) and (b) above, then notwithstanding any other provision under these Terms of Service, Blackpanda shall be entitled to cancel or terminate your IR-1 with immediate effect by giving written notice to you. If Blackpanda terminates your IR-1 pursuant to this Section 7.3(c), then you will receive a pro-rata refund for the remaining IR-1 Term (or if your IR-1 was paid for by a third party partner, then Blackpanda may elect to refund or enter into a proposed compromise or arrangement with such third party who paid Blackpanda for your IR-1).
7.4 Your Use
You shall, and shall procure that your Affiliates shall, (a) obtain all necessary authorizations, approvals and permissions for use of IR-1 in relation to the relevant Endpoints; (b) use IR-1 in full compliance with these Terms; (c) use IR-1 in accordance with all applicable laws and government regulations (including any local laws to which you are subject); (d) not make IR-1 available to any unauthorized third party, and promptly inform Blackpanda in the event of any suspected unauthorized access to or use of IR-1; (e) not create or attempt to create any substitute service or service similar to IR-1, by use of, reference to or access to, IR-1 or any of Blackpanda’s Intellectual Property Rights; (f) not sell, lend out, lease, transfer, assign, sublicense, distribute or permit access or use of IR-1, or any part thereof, to any third party without our prior written approval; (g) not interfere with, or disrupt the integrity or performance of IR-1 or any third party data contained therein; (h) not attempt to gain unauthorized access to IR-1 or its related systems or networks; and (i) not decompile, disassemble, or reverse-engineer the software included in the IR-1, subject to what follows from applicable law.
3. An Affiliate means any entity that directly or indirectly controls, is controlled by, or is under common control of you, where control means the possession, directly or indirectly, of the power to direct or cause the direction of the management or the policies of the entity.
7.5 Your Indemnity:
(a) You expressly agree and acknowledge that in the course of our Cyber Security Incident Response Services, Blackpanda is reliant on your obligations, representations and warranties set out in this Section 7 to ensure that among others, we are not perpetuating wrongful acts.
(b) You agree to promptly indemnify, defend and hold harmless Blackpanda and its officers, employees and agents (“Blackpanda Personnel”) from any and all losses incurred by Blackpanda or Blackpanda Personnel arising directly or indirectly from or in connection with or relating to breach of (i) Sections 6 to 7.4, (ii) fraud, (iii) wilful misconduct or (iv) wilful negligence by you.
8. Limitation of Liability
To the maximum extent permitted by applicable laws, Blackpanda and Blackpanda Personnel, will under no circumstances be liable to you for any indirect or consequential damages, including, but not limited to, the costs of recovering, reprogramming, or reproducing any program or data or the failure to maintain the confidentiality of data, any loss of business, profits, revenue or anticipated savings, resulting our obligations under the IR-1 and/or these Terms of Service.
To the maximum extent permitted by applicable laws, the limit of Blackpanda and any Blackpanda Personnel’s liability to you and any subsequent owner arising under this IR-1 and/or these Terms of Service shall not exceed the original price paid for the IR-1 (whether by you or a third party).
Blackpanda specifically DOES NOT warrant that (i) it will be able to repair or replace the Endpoints without risk to or loss of programs or data, (ii) it will maintain the confidentiality of data, or (iii) the operation of the Endpoint will be uninterrupted or error-free.
9. Term, Termination and Renewals
Unless the applicable laws provide otherwise, there are no cancellations or refunds and both you and us agree to abide by these Terms of Service for the IR-1 Term.
Unless otherwise agreed to in writing between us and you, the IR-1 Term will begin on the Effective Date and continue for twelve (12) months (the “Initial Subscription Term”), and thereafter these Terms of Service and your IR-1 shall renew for additional successive periods identical in length to the Initial Subscription Term (“Renewal Subscription Term” and collectively, “Subscription Term”), unless either Party notifies the other in writing no less than thirty (30) days prior to the close of the then-current Initial or Renewal Subscription Term of its intention not to renew.
10. Intellectual Property Rights
10.1 “Intellectual Property Rights” means Intellectual Property Rights means all copyrights and related rights, design rights, registered designs, patents, trademarks and service marks (registered and unregistered), trade secrets, database rights, know-how, rights in confidential information and all other intellectual property rights throughout the world for the full term of the rights concerned, including any derivative works incorporating any of the foregoing that may be created or developed in connection with these Terms.
10.2 All Intellectual Property Rights subsisting in, and relating to or arising out of IR-1 and Cyber Security Incident Response Services, including all software, technology and content, are owned by and vest in Blackpanda and/or its licensors, including all developments and enhancements made to the aforementioned. You acknowledge and agree that no rights, title, or interest in or to IR-1 or the Cyber Security Incident Response Services or any related Blackpanda Intellectual Property Rights are assigned or transferred to you under these Terms.
10.3 You grant to Blackpanda a non-exclusive, sub-licensable, royalty-free, worldwide, perpetual and irrevocable license to freely use any data generated as a result of the Cyber Security Incident Response Services, in anonymized and aggregated form only, for commercial purposes including sharing with any third parties, provided that your confidentiality is maintained, and such material is disclosed in a form which is not capable of being reverse engineered.
10.4 If you submit feedback about IR-1 or Cyber Security Incident Response Services to Blackpanda, including comments and ideas on how to improve the foregoing, all such feedback will constitute confidential information of Blackpandae and will be the sole and exclusive property of Blackpanda. You hereby irrevocably assign and transfer to Blackpand all your rights, title and interest in and to all feedback including all Intellectual Property Rights therein.
11. General Terms
11.1 Blackpanda may subcontract or assign performance of its obligations to third parties but shall not be relieved of its obligations to you in doing so.
11.2 Blackpanda is not responsible or liable for any failures or delays in performing our obligations under these Terms of Service or the IR-1 that are due to events outside of our reasonable control. Such events specifically include (but are not limited to) acts of war and terrorism and any cyber operations carried out in the course of war or terrorism. These would include cyber operations that have been attributable to a state or terrorist group (or those acting on their behalf) by reputable sources or where there is reasonable evidence to imply such attribution. Reputable sources include but are not limited to the defending or victim state or industry leading open source intelligence sources such as the US National Institute of Standards and Technology (NIST).
11.3 You agree that any information or data provided to Blackpanda under the registration process of the IR-1 is not confidential or proprietary to you. Further and/or separate to the foregoing, you agree that Blackpanda may collect and process data on your behalf when we provide our Cyber Security Incident Response Services. This may include transferring your data to affiliated companies or service providers. Notwithstanding the generality of the foregoing, our use of data (and any personal data) is further detailed in and shall always be in accordance with our Privacy and Data Policy.
11.4 You will be responsible for the instructions you give to us regarding the processing of data in the event of a Cyber Security Incident, and Blackpanda will seek to comply with those instructions as reasonably necessary for the performance of our services and obligations under these Terms of Service and the IR-1.
11.5 These Terms of Service and the other terms and conditions referred to herein, and the Confirmation Email, shall prevail over any conflicting, additional, or other terms of any purchase order or other document, and constitute yours and our entire understanding with respect to the IR-1.
11.6 Blackpanda is not obligated to renew the IR-1. If Blackpanda does offer to renew the IR-1, Blackpanda reserves the right to determine the price and terms of such renewal.
11.7 Jurisdiction
(a) If you are domiciled in and/or are a corporation validly incorporated under the laws of Japan:
These Terms of Service and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the laws of Japan.
(b) In all other circumstances:
These Terms of Service and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the laws of the Republic of Singapore. You also agree that the courts of Singapore shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these Terms of Service or the IR-1.
General Terms and Conditions of Sale
These terms and conditions (“Terms” or “Terms of Sale”) shall apply to all Products (as defined below) or Services (as defined below) sales save as otherwise agreed in writing.
All Products sales to the Purchaser are subject to these Terms of Sale. The Purchaser's unequivocal acceptance of these terms shall be deemed by (i) Purchaser signing or agreeing to these Terms; or (ii) Purchaser providing a purchase order or ordering document to Blackpanda; or (iii) Purchaser’s acceptance of any Product or Service from Blackpanda; whichever occurs first.
CURRENT VERSION: 20 March 2023
1. DEFINITIONS
1.1. “Confidential Information” means in relation to either Blackpanda or Purchaser, any and all written or oral form of non-public information, know-how (whether patentable or copyrightable or not), including, without limitation to, the business policies or practices, information received from others that the Party is obligated to treat as confidential, as well as other information related to the above that such Party designates as being confidential or which, under the circumstances surrounding disclosure ought to be treated as confidential by the other Party.
1.2. "Blackpanda" means such Blackpanda contracting entity as stipulated in the quotation, purchase order, ordering form, or letter of engagement (as the case may be).
1.3. "Intellectual Property" means all copyright, patents, utility innovations, trade marks and service marks, geographical indications, domain names, layout design rights, registered designs, design rights, database rights, trade or business names, rights protecting trade secrets and confidential information, rights protecting goodwill and reputation, and all other similar or corresponding proprietary rights and all applications for the same, whether presently existing or created in the future, anywhere in the world, whether registered or not, and all benefits, privileges, rights to sue, recover damages and obtain relief or other remedies for any past, current or future infringement, misappropriation or violation of any of the foregoing rights.
1.4. “Non-Conforming Product” shall mean a Product that does not conform to the Supplier’s Warranties.
1.5. "Purchaser" means the person, business or company that is the purchaser of the Products.
1.6. "Products means any products (including software) or services, where applicable, supplied to Purchaser by Blackpanda and described in Blackpanda's invoice. Reference to “Products” shall, where applicable also include Services if so purchased by the Purchaser.
1.7. “Services” means any services supplied to Purchaser by Blackpanda or its Supplier and described in Blackpanda’s quotation and invoice, including but not limited to technical services, installation services, educational services (such as educational or training courses, and examination or certification services), or such other services provided by Blackpanda or a Supplier and includes supply of materials, software, tools and information related to such services (“Deliverables”).
1.8. “Supplier” means the manufacturer or publisher of the Products or Services, or the service provider, manufacturer or publisher providing the Products or Services, which for the avoidance of doubt shall not mean Blackpanda unless Blackpanda is the party providing the service.
1.9. “Supplier’s Warranties” means the warranties, if any, provided by the applicable Product’s Supplier relating to a particular Product.
1.10. “Territory” means such countries or jurisdictions as set out in the applicable order forms or processes as accepted by Blackpanda.
2. ORDERS
2.1. All orders for Products placed by Purchaser:
2.1.1. must be made in accordance with Blackpanda’s order process as notified to Purchaser from time to time; and
2.1.2. are subject to acceptance by Blackpanda, and no order will be deemed to have been accepted by Blackpanda unless Products are supplied or a back-order or delivery delay is confirmed in writing by an authorised representative of Blackpanda to Purchaser.
2.2. Blackpanda may reject any order placed by Purchaser if there is an insufficient supply of Products which prevents Blackpanda from being able to fulfill such order.
3. PRICE AND PAYMENT
3.1. The price of the Products will be Blackpanda's quoted price and are subject to change without prior notice.
3.2. Payment is required prior to delivery of the Products to Purchaser unless agreed otherwise in writing by Blackpanda.
3.3. If Purchaser fails to make payment in accordance with this clause
3.3.2. all amounts owing by Purchaser to Blackpanda on any account (including any chargers of partial delivery or provision of Products and Services) will immediately become due and payable together with legal costs of enforcement.
3.3.3. Blackpanda may, in its sole discretion, vary or cancel any credit facility or credit privileges it makes available to Purchaser from time to time. For the avoidance of doubt, Blackpanda retains the right from time to time, without notice, to change or revoke Purchaser’s credit limit on the basis of, including but not limited to, changes in Blackpanda’s credit policies or Purchaser’s financial condition and/or payment record.
3.4. Purchaser will be liable to pay interest on any overdue amount at the rate of 1.5% per month or the maximum amount allowed by law will be charged on all past due balances commencing on the date payment is due, whichever is higher. Interest will accrue daily from the date payment became overdue until Blackpanda has received payment of the overdue amount, together with any interest accrued. Purchaser’s obligation to make timely payment is a material element of these Terms and if breached will cause damage to Blackpanda.
3.5. Each payment made by the Purchaser shall be made without any offset, abatement, recoupment, counterclaim, withholding or reduction whatsoever.
3.6. Unless stated otherwise in these Terms (or in writing by Blackpanda's authorised representative), all prices quoted for Products are exclusive of all taxes, handling, delivery, agents' charges and any other charge, duty or impost.
3.7. Purchaser must pay Blackpanda, on demand, any tax (other than income tax) payable under these Terms, any matter or thing done under these Terms or any payment, receipt or other transaction contemplated by these Terms, including any goods and services tax, customs duty, excise duty, stamp duty, other duty, governmental charge, fee, levy or impost, together with any fine, penalty or interest payable because of a default by Purchaser. For the avoidance of doubt, Blackpanda is not responsible for Purchaser’s tax liabilities nor is Blackpanda responsible for reimbursing Purchaser for the same.
3.8. Purchaser shall furnish to Blackpanda all financial information reasonably requested by Blackpanda from time to time for the purpose of establishing or continuing Purchaser’s credit limit. Purchaser agrees that Blackpanda may disclose any such information to its advisors or insurers for the purposes of, including but not limited to, evaluation of credit to be extended to Purchaser.
3.9. To the extent the Purchaser is a credit customer, the Purchaser agrees to immediately notify Blackpanda of any changes to any of the details contained in its credit application or as otherwise provided by Purchaser to Blackpanda, and any other material changes to Purchaser’s ownership, shareholding, structure and/or business, trading or financial activities.
3.10. In the event that Purchaser successfully applies for GST Registration, Purchaser must promptly provide written notice of its GST Registration Number and Effective Date of GST Registration to Blackpanda.
3.11. Any obligation of Blackpanda under these terms and conditions to deliver Deliverables on credit terms shall terminate without notice and without liability to Blackpanda if Purchaser files a voluntary petition under a bankruptcy statute or any other statute relating to insolvency or protection of the rights of creditors, or makes an assignment for the benefit of creditors, or if an involuntary petition under a bankruptcy statute or any other statute relating to insolvency or the protection of rights of creditors is filed against Purchaser, or if a receiver, manager, liquidator or trustee is appointed to take possession of the assets of Purchaser.
4. DELIVERY OF GOODS OR SERVICES
4.1. To the extent that a Product supplied under these Terms is a physical product, delivery to a local address will be subject to freight and handling charges. Delivery to an international address will be subject to additional terms and charges.
4.2. Delivery times advised to Purchaser are estimates only and Blackpanda will not be liable for any loss, damage, or delay suffered or incurred by Purchaser or its Purchasers arising from late or non-delivery of the Products.
4.3. Blackpanda may make part deliveries of any order, and each part delivery will constitute a separate supply of the Products upon these Terms.
4.4. Should Purchaser decide to collect the Products and fails to do so on the agreed date, Purchaser shall hold Blackpanda harmless and shall indemnify Blackpanda fully for any costs or damages Blackpanda may incur in relation to the uncollected Products, including any storage or disposal fees, where applicable.
4.5. In the case of all Services provided by Blackpanda:
4.5.1. Purchaser acknowledges that Blackpanda works for Purchaser in a technical and supporting advisory capacity, and Blackpanda shall take no decisions on behalf of Purchaser. All advice and other services Blackpanda provide pursuant to this engagement are solely for Purchaser and are not for the benefit of another party, except where Blackpanda has been advised of such intent and are given specific prior consent in writing from Purchaser to share such advice with third parties;
4.5.2. Purchaser agrees that all services shall be limited to the set of “Endpoints”, which may include but are not limited to devices, systems, infrastructure, and applications clearly set out, and identified. The Endpoints, where applicable, will be stipulated in the quotation, purchaser order, ordering form, or letter of engagement (as the case may be). No additional services will be performed, unless otherwise agreed to by Blackpanda in writing;
4.5.3. Purchaser agrees that Blackpanda and/or a subcontractor may conduct security and vulnerability scans of your Endpoints and attack surfaces (the “Tests”), which include, among other things, information gathering, crawling, fingerprinting, fuzz testing, deploying of test scripts and penetration tests. In light of the foregoing, the Purchaser also represents and warrants that
4.5.3.1. Purchaser has the full right, power and authority to consent to have Blackpanda and/or the aforementioned subcontractor conduct such Tests;
4.5.3.2. Purchaser owns the Endpoints, and have authorised, and/or have obtained or will obtain all necessary third party authorisation for Blackpanda to conduct of such Tests on the Endpoints; and
4.5.3.3. Purchaser has and/or have procured that all necessary system backups and implemented all necessary disaster recovery plans and procedures to return the Endpoints to its pre-Test state.
4.5.4. Purchaser agrees to provide all relevant information, and accurate and complete instructions in a timely manner to facilitate Blackpanda in providing the Services. In connection with the foregoing, Purchaser expressly acknowledges that all timelines and completion dates provided by Blackpanda are reasonable estimates, based on, among other things, Purchaser granting Blackpanda reasonable access and accurate and complete information and instructions.
4.5.5. Purchaser agrees that to sign and execute such letters, forms, and other authorisation documents as may be reasonably requested by Blackpanda and/or any subcontractors prior to or in connection with the provision of the services;
4.5.6. Purchaser agrees that all services shall be performed remotely unless Purchaser specifically request for on-site performance by such services. In such circumstances, all reasonable travel and out-of-pocket expenses incurred by Blackpanda personnel in connection with such on-site performance shall be reimbursed by Purchaser.
4.6 Blackpanda reserves the right to refuse provision of any services or to limit the scope of our services if it gives rise to a result and/or circumstances which we, in our professional opinion, give rise to illegal acts and/or commercially unreasonable acts and/or put Blackpanda in a professionally compromised position.
5. SOFTWARE
5.1. To the extent that a Product supplied under these Terms is a software then, in addition to these Terms, that software Product will be supplied subject to the terms and conditions of the relevant license agreement applicable to it. Where applicable, Purchaser agrees to be bound by any such terms and conditions and/or restrictions and shall indemnify Blackpanda for any liability suffered by it arising from Purchaser’s breach of such terms, conditions and/or restrictions.
5.2. Software license agreements may be packaged with the software, or may be separately provided to Purchaser or may require on-screen acceptance by Purchaser. Use of the software Product shall be in accordance with the terms and conditions of the relevant license agreement.
5.3. Where the term "supply" is used in these Terms to refer to a software Product, such term means the sale and purchase of a licensed copy of that software Product or a right to access a hosted copy of that software Product (regardless of whether such software is supplied in hard copy or electronically, or where access is otherwise provided to a copy of the software).
6. INSPECTION AND ACCEPTANCE
6.1. In the case of all Products ordered, Purchaser must:
6.1.1. (For non-software Products) inspect such Products upon delivery to Purchaser's premises.
6.1.2. (For software Product) test or inspect such software Products upon those software Products being authorised by Blackpanda for downloading by Purchaser.
6.2. If Purchaser alleges any matter or thing by which the Products do not accord with Purchaser's order, Purchaser must give written notice to Blackpanda within 3 working days of delivery or downloading (as the case may be).
6.3. Failing such notice and to the extent permitted by law, the Products will be deemed to have been accepted by Purchaser.
7. TITLE AND RISK
7.1. Products supplied by Blackpanda to Purchaser will be at Purchaser's risk immediately upon:
7.1.1. delivery of the Products to the Purchaser, Purchaser’s agent or nominee, or into the Purchaser's custody or control; or
7.1.2. collection of the Products by the Purchaser’s nominated carrier or agent.
7.2. Purchaser must:
7.2.1. effect and maintain with a reputable insurance company insurance for the Products, at its cost, against all risks as it thinks appropriate, including loss or damage by fire, theft, accident and other such risks;
7.2.2. note the interest of Blackpanda on the insurance policy; and
7.2.3. produce a certificate of currency of the insurance effected by Purchaser under this clause to Blackpanda, upon request.
7.3. Risk in the Products will remain with Purchaser at all times unless Blackpanda retakes possession of the Products in accordance with the Terms.
7.4. Title in the Products supplied by Blackpanda to Purchaser will not pass to Purchaser and will remain the absolute property of Blackpanda until such time as Blackpanda has been paid by Purchaser all monies due and owing to it by the Purchaser in relation to any account. Notwithstanding payment, title to those Products which are Deliverables or software remains with Blackpanda and/or the applicable third party licensor(s) at all times.
7.5. Until the Products have been paid for and title to the Products has passed to the Purchaser:
7.5.1. Purchaser must properly segregate and store the Products in such manner as to clearly indicate that they are the property of Blackpanda, and Purchaser grants Blackpanda the right to enter Purchaser’s premises to repossess the Products and to sell or dispose of those Products.
7.5.2. Purchaser may sell the Products and shall keep records of the Products in the ordinary course of its business as fiduciary agent for Blackpanda and Purchaser agrees to deposit all proceeds of any such sale (including any proceeds received from any insurance claims) in a separate bank account and agrees not to mix the proceeds with any other monies and hold the monies on trust for Blackpanda and shall immediately account for such proceeds to Blackpanda.
7.6. If Purchaser has breached these Terms, Purchaser authorizes Blackpanda, at any time, to enter onto any premises upon which Blackpanda's Products are stored to enable Blackpanda to:
7.6.1. inspect the Products; and/or
7.6.2. reclaim the Products and/or discontinue access to the Products.
7.7. If Purchaser sells, disposes of or otherwise deals with Products or any part thereof before full payment has been received by Blackpanda, Purchaser must advise Blackpanda in writing, at such times as Blackpanda may request, specifying full details of the Products sold, disposed of, utilised or otherwise dealt with.
7.8. Purchaser acknowledges that in the case of software Products, any refusal or failure to pay may result in cancellation of the license to use the software Product.
7.9. Purchaser agrees that the provisions of this clause apply despite any arrangement under which Blackpanda grants credit to Purchaser.
8. PRODUCT RETURNS
8.1. Return of Products will be subject to the returns process for the affected Product ("Returns Process") as notified by Blackpanda from time to time.
8.2. Purchaser must notify Blackpanda in writing of any Products it wishes to return within seven (7) days from the date of the invoice relating to those Products or such other time period stipulated in the Returns Process.
8.3. Each claim for the return of Products by Purchaser will be dealt with in accordance with the Returns Process.
8.4. Any substitute Products to be shipped to Purchaser in accordance with the Returns Process will be sent by Blackpanda to Purchaser by ordinary freight pre-paid.
8.5. Blackpanda will not be liable for any damage or defects in the Products:
8.5.1. that have been caused by the Purchaser’s improper storage, warehousing or transport, by any neglect, abuse or improper use;
8.5.2. installation, maintenance or unauthorised repair of the Products;
8.5.3. that is not covered by Supplier’s warranty;
8.5.4. Products which have been added to, varied, or otherwise modified by, any person other than Blackpanda or a third party authorized by Blackpanda in writing;
8.5.5. in connection with the claim Purchaser alleges that cartons were damaged in transit but the Proof of Delivery (POD) does not identify that cartons were damaged in transit;
8.5.6. the claim for a return request is not notified to Blackpanda in writing within the period stated in clause 8.2.
9. FORCE MAJEURE
9.1 If the performance of Blackpanda's obligations under these Terms is prevented, restricted or affected by acts of God, acts of war or terrorism (including but not limited to any cyber operations carried out in the course of war or terrorism) pandemic, strike, lock out, raw material shortage, breakdown of plant, electrical, network or telecommunication outage, government restrictions (including denial or cancellation of export or other licenses), delay caused by Supplier, transport or equipment or any other cause beyond the reasonable control of Blackpanda, Blackpanda will give notice of such cause to Purchaser and Blackpanda shall not be held in default of its obligations under these Terms or held liable for any noncompliance. If such event continues for more than 60 days from the date of notice, either party may terminate any affected orders without penalty. This section does not excuse the Purchaser’s payment obligations for delivered Products.
10. PURCHASER'S CANCELLATION
10.1. Unless otherwise agreed in writing by an authorised officer of Blackpanda, Purchaser may not cancel an order which has been accepted by Blackpanda.
10.2. If Purchaser's right of cancellation is agreed to by an authorised officer of Blackpanda in writing, the right must be exercised by notice in writing from Purchaser to Blackpanda not later than 7 days before the estimated date of shipment by the Supplier or Blackpanda (as the case may be).
10.3. Unless otherwise agreed between Purchaser and Blackpanda, upon cancellation prior to shipment, any deposit paid by Purchaser will be forfeited to Blackpanda.
11. DEFAULT OF PURCHASER
11.1. Without prejudice to any of Blackpanda's other rights under these Terms, if Purchaser breaches any of these Terms, Blackpanda may, in its sole discretion, and without further liability to Purchaser:
11.1. refuse to make further supplies to Purchaser; and/or
11.2. terminate the relationship without notice.
12. RESALE
12.1. All Products supplied by Blackpanda may only be sold by Purchaser within the Territory unless otherwise agreed in writing. Purchaser must not knowingly sell or supply the Products to any person who intends to resell or on-supply them outside the Territory.
12.2. The parties acknowledge and agree that the Purchaser may set the amounts it charges to its customers for re-supply of the Products in its sole discretion.
13. WARRANTY
13.1. Certain statutory provisions may imply warranties or conditions or impose obligations upon Blackpanda which cannot be excluded, restricted or modified whether at all or only to a limited extent. Clauses 13 (Warranty) and 14 (Non-Conforming Products) must be read subject to those statutory provisions.
13.2. To the extent permitted by law,
13.2.1. Products are covered by the Supplier’s Warranties.
13.2.2. Blackpanda’s entire responsibility with respect to express warranties for the Products is to pass on to Purchaser the benefit of any such Supplier’s Warranties to the extent it is able to.
13.2.3. The Supplier’s Warranties are in substitution for all other terms, guarantees, conditions and warranties, whether implied by statute or otherwise (including implied warranties with respect to merchantability and fitness for purpose) and Blackpanda expressly excludes all such other terms, guarantees, conditions and warranties.
13.2.4. Blackpanda does not warrant that repair facilities or parts will be available in respect of any of the Products.
13.3. Software Products are not warranted by Blackpanda under these Terms. Such software Products are warranted in accordance with the relevant license agreements governing their use.
13.4. To the full extent permitted by law and unless otherwise expressly agreed by Blackpanda, Blackpanda does not warrant that repair facilities or parts will be available in respect of any Products.
13.5. Purchaser warrants that it is acquiring the Products for the purpose of use as inventory in Purchaser’s business, and that it is not acquiring the Products wholly or predominantly for personal, domestic or household use or consumption.
14. NON-CONFORMING PRODUCTS
14.1. To the extent permitted by law, Blackpanda’s entire responsibility with respect to Non-Conforming Products where such non-conformity arises within the time frame stipulated by the Supplier, or if a time frame is not stipulated, within a period of six (6) months from delivery to an end-user, will be to arrange for (a) (at Blackpanda’s reasonable discretion) a replacement or repair of the Product; or (b) where a replacement or repair under (a) is not practical or possible, a reduction of the price of the Products (calculated on a straight line depreciation basis) or a refund.
14.2. Clause 14.1 shall not be applicable if the Purchaser, end-user or any third party (which is not an Blackpanda agent) had damaged or misused the Product thereby causing the non-conformity or if the Non-Conformity, damage, fault or misuse is excluded under the Supplier’s warranties.
15. LIABILITY
15.1. Purchaser will be liable for all orders placed with Blackpanda through Purchaser's account, regardless of whether those orders were placed in accordance with Purchaser's authorisations or instructions. It is Purchaser's responsibility to ensure that its account is only accessed and used by authorised personnel pursuant to, and in accordance with, any limits on their authority, and safeguarded from misuse by authorised or unauthorised individuals.
15.2. Purchaser will defend, indemnify and hold harmless Blackpanda, its related bodies corporate, affiliates and subsidiaries and each of their respective officers, directors, employees and agents from and against any and all claims, demands, proceedings, actions, liabilities, losses, damages, costs or expenses of any kind (including reasonable attorney's fees and disbursements) incurred or sustained as a result of, or arising out of, or relating to any actions taken by Blackpanda regarding the Products at the request of, and consistent with, instructions provided by Purchaser, Purchaser’s infringement of Blackpanda’s or any third party’s intellectual property rights, any breach of these Terms or any acts or omissions of Purchaser or its employees, related bodies corporate, affiliates or agents, arising from the manner in which Purchaser markets and sells the Products, supply by Purchaser of any goods or services for use in conjunction with or in relation to the Products, or any breach or alleged breach of any applicable laws or regulations relating to the storage, marketing or sale by Purchaser of the Products.
15.3. To the extent that an indemnity under this agreement is in favour of a person other than Blackpanda, Blackpanda contracts as trustee of the rights under that indemnity.
15.4 To the extent permitted by law, Blackpanda will not be liable to Purchaser or any other person under any circumstances for any loss of use, profit, revenue, interest, goodwill or data, or for any special, consequential, punitive, economic, indirect, incidental or consequential damages sustained or incurred by Purchaser, whether such liability arises directly or indirectly as a result of:
15.4.1 any negligent act or omission or willful misconduct of Blackpanda or its employees or agents;
15.4.2. any failure to deliver Products within a specified time period;
15.4.3. availability and/or delays in delivery of Products;
15.4.4. discontinuation of Productions, product lines or any part thereof;
15.4.5. cancellation of any orders by Purchaser;
15.4.6. the supply, performance or use of any Products or services;
15.4.7. modification or misuse of any Products by Purchaser or a third party acting on Purchaser’s behalf;
15.4.8. failure to use corrections or additions to the Products which are made available by Blackpanda;
15.4.9. errors in the Products as published, or delays or errors in publications;
15.4.10. the supply or performance of any services provided by a third party who is not Blackpanda’s agent;
15.4.11. Purchaser’s own acts or omissions, or where Blackpanda was acting under the specific instruction of Purchaser;
15.4.12. risks notified to Purchaser where Purchaser nonetheless elected to proceed; r
15.4.13. any breach by Blackpanda of its obligations under these Terms.; or
15.4.14 third party patent infringement actions.
15.5. For the avoidance of doubt, the only liability of Blackpanda with respect to:
15.5.1. any damaged goods, defective goods and/or goods erroneously shipped will be the return rights described; and
15.5.2. any defective Services and/or Services not meeting any service level mutually agreed in writing will be the reperformance of such services.
15.6. Purchaser's, its related bodies corporate, and their respective customers' sole and exclusive remedy relating to these Terms and/or the Products will be the remedy, if any, afforded by the Supplier of such goods to such parties as anticipated by clause 13.
15.7. Notwithstanding anything to the contrary in this agreement, or even if this agreement fails its essential purpose, in no event will Blackpanda’s cumulative liability (in tort (including negligence), contract (including under any indemnity), warranty, infringement, under statute or otherwise) to Purchaser under this Agreement exceed the purchase price actually paid by Purchaser for the supply of the affected Product that give rise to the dispute, or any defective portion thereof, whichever is the lesser amount. Blackpanda’s liability to Purchaser (including in tort (including negligence), contract (including under any indemnity), warranty, infringement, under statute or otherwise) will be reduced by the extent, if any, to which Purchaser contributed to the loss or damage.
15.8. For the avoidance of doubt, none of the terms and conditions set out in this Section exclude Blackpanda’s liability for:
15.8.1. the death or personal injury caused by the Supplier’s negligence; or
15.8.2. fraud or fraudulent misrepresentation.
15.9. All references to the Supplier in this Section shall be treated as including all Blackpanda group’s employees, subcontractors and suppliers, all of whom shall have the benefit of the exclusions and limitations of liabilities set out in this Section.
15.10. The obligations of Blackpanda and any affiliate thereof, if any, are the several obligations of each such entity and nothing will be deemed to create any joint and several liability between or among Blackpanda and/or any of its affiliates.
16. INTELLECTUAL PROPERTY
16.1. Purchaser acknowledges that:
16.1.1. Intellectual Property embodied in or in connection with the Products and any related documentation, parts or software are the sole property of Blackpanda or its Suppliers;
16.1.2. all Intellectual Property of Blackpanda or its Suppliers may only be used by Purchaser with the express written consent of Blackpanda or its Suppliers and such consent extends only to use essential for the purposes stated in it; and
16.1.3. If consent for use is granted by Blackpanda or Supplier in accordance with clause 16.1.2 above, Purchaser shall comply with any intellectual property use requirement or guidelines issued by Blackpanda or Supplier.
16.2. Purchaser must not register any trademarks, trade name, domain name, trading style or commercial designation or design used by Blackpanda or its Suppliers in connection with the Products.
16.3. Purchaser will immediately give written notice to the other Party of any actual, threatened or suspected infringement of any Party's intellectual property rights used in connection or developed in accordance with a Project (including but not limited to the Deliverables) of which it becomes aware.
16.4. Purchaser will indemnify Blackpanda against all liabilities, damages, costs and expenses which Blackpanda may suffer or incur as a result of Purchaser’s breach or infringement of any third party’s intellectual property rights, Purchaser’s non-compliance with Supplier’s intellectual property guidelines, any work performed by Blackpanda in accordance with Purchaser's specifications or as a result of the combination or use of the Products with other equipment, parts or software not supplied by Blackpanda, and which results in the infringement of any Intellectual Property of any person.
16.5. Blackpanda has no duty to defend, indemnify or hold harmless Purchaser, its related bodies corporate, affiliates or their respective customers from and against any claim, demand or cause of action, including any damages, costs or expenses incurred by Purchaser, its related bodies corporate, affiliates or their respective customers in connection with, arising from or relating to any actual or alleged product liability or violation or infringement of any patent, trademark, copyright or other intellectual property belonging to a third-party by the Products.
16.6. For the avoidance of doubt, the Terms do not transfer any interest in intellectual property rights in the Products (including but not limited to copyright, trademarks and/or patents whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world).
17. CONFIDENTIALITY
17.1. Purchaser acknowledges that Blackpanda has disclosed and may from time to time disclose to Purchaser Confidential Information.
17.2. Subject to clause 17.5, Purchaser must:
17.2.1. only use the Confidential Information solely for the purposes relating to its orders; and
17.2.2. not disclose (whether directly or indirectly) to any third party the Confidential Information, other than is required to carry out such purposes.
17.3. If disclosure of Confidential Information to third parties is necessary, Purchaser will obtain from such third parties binding agreements to maintain in confidence the Confidential Information disclosed at least to the same extent as Purchaser is bound to protect Blackpanda's Confidential Information under this clause.
17.4. Upon the expiry or termination of the parties’ relationship must cease to use and must return or destroy (as Blackpanda may instruct) Confidential Information in its possession or control.
17.5. In the event Purchaser is required to disclose any Confidential Information to a government authority or by relevant laws, Purchaser shall provide Blackpanda with reasonable prior notice of any such required disclosure and shall use reasonable efforts to limit disclosure and to obtain confidential treatment or a protective order and has allowed Blackpanda to participate in the proceeding that requires the disclosure.
17.6. This clause does not extend to any information which is:
17.6.1. at the time of disclosure, rightfully known to or in the possession or control of Purchaser and which is not subject to an obligation or confidentiality;
17.6.2. public knowledge (otherwise than as a result of a breach of this clause 17 or any other obligation of confidentiality); or
17.6.3. approved in writing by an authorised officer of Blackpanda to be disclosed.
18. COMPLIANCE
18.1. Purchaser acknowledges that some Products may be controlled under export laws in force at the material time. Purchaser shall not export, re-export, or distribute Products, in violation of any such export control laws or regulations.
18.2. Purchaser acknowledges that the Products or Deliverables supplied may be subject to the controls of the United States Department of Commerce or other relevant export control laws, and that the Products or Deliverables may require authorization prior to export, re-export or transfer in-country. Specifically, Purchaser agrees that it will not directly or indirectly export, re-export, transfer in-country or otherwise distribute Products or Deliverables, or direct Products or Deliverables thereof, in violation of any export control laws or regulations of the United States. Purchaser warrants that it will not export, re- export or transfer in-country any Products or Deliverables with knowledge that they will be used in the design, development, production, or use of chemical, biological, nuclear, or ballistic weapons, or in a facility engaged in such activities, unless Purchaser has obtained prior approval from the Department of Commerce or other relevant authorities. Purchaser further warrants that it will not export, re-export or transfer in-country directly or indirectly, any Products or Deliverables to embargoed countries or sell Deliverables to companies or individuals listed on the Denied Order issued by the United States.
18.3. Consistent with Blackpanda's high standards for business ethics and its determination to be a responsible corporate citizen, Blackpanda places a high priority on compliance with laws regulating exports, imports and supply chain security. Blackpanda compliance responsibilities may include appropriate screening, contractual and security requirements that agents, distributors, suppliers and other parties doing business with Blackpanda may have to meet. In addition to meeting Blackpanda's requirements, agents, distributors, suppliers and other parties doing business with Blackpanda are also required to comply with the letter and spirit of all applicable laws regulating exports, imports, and supply chain security.
18.4. Purchaser warrants that it complies and will continue to comply in all of its business dealings with applicable laws against bribery, corruption and money-laundering. Purchaser and its owners, partners, shareholders, officials, directors or employees, or any of its representatives, has not made, and will not make, any direct or indirect payment, offer to pay, or authorization to pay, any money, gift, promise to give, or authorization of the giving, of anything of value to any government official, a political party or a party official, or any candidate for political office, or the immediate family of any such official or candidate, for the purpose of influencing an act or decision of the government or such individual in order to assist, directly or indirectly, Purchaser or Blackpanda in obtaining or retaining business, or securing an improper advantage. Purchaser will indemnify and hold Blackpanda harmless from and against any claims of any nature arising out of or relating to a violation of any of the stipulations of the prior paragraph.
18.5. Purchaser acknowledges that certain Products or Deliverables may be subject to license requirements or other restrictions specific to certain transactions. Where applicable, Purchaser agrees to be bound by any such terms and conditions and/or restrictions and shall indemnify Blackpanda for any liability suffered by it arising from Purchaser's breach.
18.6. Purchaser shall exercise reasonable care and diligence to prevent any actions or conditions that could result in a conflict with the interests of Blackpanda. This obligation shall apply to the Purchaser; the Purchaser's employees, agents, and relatives; subcontractors; and third parties associated with accomplishing work and services hereunder. Purchaser's efforts shall include, but not be limited to, establishing precautions to prevent its employees or agents from making, receiving, providing or offering gifts, entertainment, payments, loans or other considerations which could be deemed to appear to influence individuals to act contrary to the best interests of Blackpanda.
18.7. The Purchaser hereby declares that it is not aware of any actual or potential conflict of interest and undertakes to promptly disclose in writing to Blackpanda any actual or potential conflict of interest as soon as it is aware of the same.
19. ADDITIONAL SUPPLIER TERMS AND RESTRICTIONS
19.1. All Products and Deliverables delivered to Purchaser hereunder may have additional terms or restrictions on their use required by the Supplier of the Products. Purchaser is solely responsible for ensuring its adherence to any and all such restrictions and requirements. If any Supplier prohibits Blackpanda from selling specific Products or Deliverables to Purchaser, then Blackpanda reserves the right not to sell such Products or Deliverables to Purchaser.
19.2. In addition to these terms and conditions, and where required by Suppliers of Products and/or Services, Blackpanda may flow through to Purchaser additional terms imposed by such Supplier for any Product/Service which shall be binding on Purchaser and/or its customer. It shall be Purchaser’s obligation to pass through these terms, where applicable, to its customer to ensure compliance with Supplier’s terms. In the event Purchaser fails to do so, Purchaser shall indemnify Blackpanda for any losses, damages, claims or liabilities that Blackpanda may incur as a result of Purchaser’s breach. For the avoidance of doubt, any term imposed on Purchaser by Blackpanda’s Suppliers may be set out online or communicated in writing by Blackpanda to Purchaser, or through Blackpanda’s Statement of Work or quotation and Purchaser shall be deemed to have unequivocally accepted the said terms by (i) Purchaser signing the terms and conditions; or (ii) Purchaser providing a purchase order to Blackpanda; or (iii) Purchaser or its customer’s acceptance of any Product or Service from Blackpanda or its Supplier; whichever occurs first.
19.3. In the event of any conflict between these said additional terms and these Terms, the Terms will apply to the extent of the conflict.
20. PRIVACY AND PERSONAL DATA
20.1. For the purposes of this Section, “Personal Data” shall mean any data or information, whether true or not, about a person who can be identified: (a) from that data alone; or (b) from that data and other information.
20.2. Blackpanda may collect, process, use and disclose personal data about the Purchaser (including its officers and employees) and/or Purchaser’s customer(s) from a variety of sources, including, directly from the Purchaser and/or Purchaser’s customer, from other users of Blackpanda’s website, from resellers and distributors, from vendors, from service providers, from third party information providers, from Blackpanda’s affiliates, and through the operation of Blackpanda’s website. Blackpanda may transfer the Purchaser’s information outside of the territory in compliance with the applicable laws.
20.3. Purchaser agrees to Blackpanda collecting, using and disclosing certain personal data or personal information about Purchaser for various purposes, including to:
20.3.1. assess credit worthiness;
20.3.2. supply the Products and services to Purchaser and/or its customers and the management of Purchaser's account, including Suppliers;
20.3.3. communicate with Purchaser and/or Supplier about the Products and services which Blackpanda or its partners or affiliates may provide to Purchaser and/or its customer, including for marketing and sales purposes;
20.3.4. implement these Terms and other relevant policies; and
20.3.5. comply with relevant laws.
20.4. Blackpanda, at the written request for Purchaser, will:
20.4.1. provide Purchaser with access to any personal data or personal information relating to Purchaser or its customer held by Blackpanda; and
20.4.2. correct or amend any personal data or personal information relating to Purchaser or customer held by Blackpanda which is inaccurate or out of date.
20.5. Purchaser shall procure that its customers acknowledge (where necessary) that as part of their use of Products and Services, Blackpanda may collect data and information with respect to the function and efficiency of the Products and Services; Blackpanda shall have the right to use such data and information to provide, maintain, protect, and to improve and develop Blackpanda's Products and Services. Purchaser and its customers may provide suggestions, comments, or other feedback related to Blackpanda’s product and service offerings to Blackpanda orally, in writing, or by other means (“Feedback”). Blackpanda will be the sole owner of all Feedback and shall not be bound by any non-use or non- disclosure obligations with respect to the Feedback, notwithstanding anything to the contrary in the Agreement.
20.6. Purchaser agrees to do anything that is required by law or which Blackpanda may reasonably determine in our discretion, as necessary or desirable to give effect to the applicable laws in respect of any Personal Data. Purchaser also agrees to cooperate with Blackpanda to ensure that the Products are provided in a manner under which all parties are compliant under the applicable law.
20.7. Blackpanda will collect, use, store, process, disclose and/or delete Purchaser’s personal data or personal information in accordance with relevant laws. Blackpanda’s Privacy Statement, which may be updated from time to time, can be found at https://www.blackpanda.com/privacy-policy or such other place as Blackpanda may update from time to time. Purchaser acknowledges that it has read and understood Blackpanda’s aforementioned Privacy Statement and agrees at all times not to do anything would be a breach of the Privacy Statement.
20.8. Purchaser warrants and represents that it has complied with all applicable personal data laws and has obtained the necessary consent from its customers, all legal rights to transfer and Purchaser’s personnel whose information is/will be disclosed to Blackpanda for Blackpanda to collect, process, use, transfer and disclose personal data about the Purchaser’s customers or personnel to third parties within or outside of the Territory.
20.9. Without prejudice to the above, and notwithstanding any other terms, Blackpanda may establish a record of results from the services we provide and provide such records to other Blackpanda group companies. The information comprising such records, will be properly anonymized and will not be considered Personal Data. The records may be used for risk measurement and related internal research, and shall be handled in accordance with all applicable laws.
21. GENERAL
21.1. The parties agree that a separate contract is formed each time Purchaser acquires goods and services from Blackpanda on the then current version of Blackpanda's Terms of Sale as displayed on our website https://www.blackpanda.com/ from time to time (if any) (the “Web Version”). In the event of any inconsistency between these Terms of Sale and the Web Version, the terms and conditions as set out in the Web Version shall prevail. By placing an order for Products and/or Services with Blackpanda from time to time or by accepting the Products or Services, Purchaser accepts and agrees that the current version of the Terms of Sale (and other documents expressly referenced in these Terms of Sale) at the time of the order will apply to that order and that to the full extent permitted by law all other terms and conditions (whether contained in the purchase order or otherwise) will be excluded.
21.2. All notices, requests, demands, and other communications that either party may desire to give the other party must be in writing and may be given by (i) personal delivery to an officer of the party, (ii) mailing the same by registered or certified mail, return receipt requested, or via nationally recognized courier services to the party at the address of such party as set forth, at the official corporate address of such party, or such other address as the parties may designate, or (iii) facsimile subsequently to be confirmed in writing pursuant to item (ii) above. Notices to Blackpanda shall be sent to: Blackpanda Pte Ltd, 11 Irving Place, #09-01, Singapore 369551 with a copy sent to legal@blackpanda.com.
21.3. No variation of these Terms by the Purchaser shall be effective unless made in writing and signed by a duly authorized officer of both parties.
21.4. If any provision of these terms and conditions shall be held to be invalid, illegal or unenforceable, such provision shall be read down or severed to the extent of the invalidity or unenforceability and the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
21.5. These terms and conditions shall be binding upon and shall inure to the benefit of the parties hereto and their respective representatives, successors and permitted assigns.
21.6. Blackpanda may audit Purchaser’s books and records at any time upon reasonable and prior notice in writing to the Purchaser. Purchaser agrees to keep complete, correct and detailed records relating to purchase of Products and/or Services, in connection with its performance under this Agreement, including a list of all parties who purchase the Products and/or Services from Purchaser. At Blackpanda’s request, Purchaser agrees and shall permit Blackpanda and/or its authorized representatives to inspect and audit all records related to this Agreement to determine compliance with, and controls related to, the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act or any other applicable laws and regulations related to anti- corruption, anti-bribery or export control. Purchaser shall cooperate fully with such audit. If Purchaser fails to maintain such information as required by this Agreement, then Blackpanda may take remedial action in its sole discretion including, without limitation, collection of audit fees, and termination of this Agreement. If an audit reveals any discrepancy, Purchaser shall bear all costs for such audit and shall indemnify Blackpanda fully for any loss or harm suffered by Blackpanda arising as a result of such audit by Blackpanda.
21.7. Purchaser agrees that failure or delay of Blackpanda to exercise a right or power under these terms and conditions shall not operate as a waiver thereof, nor shall any single or partial exercise of a right or power preclude any other future exercise thereof.
21.8. The headings used are for reference purposes only and shall have no effect upon the construction or interpretation of any provisions.
21.9. Purchaser may not assign or attempt to assign any of its rights and obligations under these Terms. Blackpanda may assign any purchase order received from Purchaser to a third party upon notice in writing to Purchaser, whose consent shall be deemed to have been obtained.
21.10. Governing Law. These terms and conditions (and any agreement into which they are incorporated) shall be construed, interpreted and enforced under and in accordance with the laws of the Republic of Singapore, excluding its conflicts or choice of law rule or principles which might refer to the law of another jurisdiction. Purchaser agrees to exercise any right or remedy in connection with these terms and conditions exclusively in, and hereby submits to the jurisdiction of the courts of Singapore for any dispute or controversy that arises out of these terms and conditions. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these terms and conditions.
21.11. Third Party Rights. A person who is not a party to this Agreement has no rights under the Contracts (Rights of Third Parties) Act, Chapter 53B of Singapore to enforce any term of this Agreement.
21.12. Dispute Resolution
21.12.1. Any dispute, controversy, difference, conflict or claim arising out of or in connection with this Agreement or its performance, including without limitation any question regarding its existence, validity or termination, or a claim for unlawful act under applicable laws, shall first be the subject of good faith negotiations between Blackpanda and the Purchaser.
21.12.2. If the dispute or controversy cannot be resolved through good faith negotiations within one month of the commencement of negotiations pursuant to Clause 21.12.1, it shall be referred to and finally settled and resolved by arbitration administered by the SIAC in accordance with the SIAC Rules for the time being in force, which Arbitration Rules of the SIAC (“SIAC Rules”) are deemed to be incorporated by reference to this Clause 21. The seat of arbitration shall be Singapore, the tribunal shall consist of one (1) arbitrator appointed in accordance with the SIAC Rules (“Arbitration Tribunal”), and the language of the arbitration shall be the English language. The decision of the Arbitration Tribunal shall be final and binding upon the Parties.
21.13. Save as provided in Clause 19, these Terms and any document(s) referred to in them constitute the entire agreement about Blackpanda's sale of the Products to Purchaser and supersede all prior understandings, arrangements and agreements. Unless expressly agreed in writing and except as provided under these Terms, any different or additional terms and conditions in any other such document submitted by the Purchaser are hereby expressly rejected and shall have no force or effect.
Privacy Policy
CURRENT VERSION: 16 February 2021
Blackpanda Pte Ltd (“Blackpanda”, “us”, “we”, or “our”) is committed to protecting your (“you”, “your”) privacy. This Blackpanda Privacy Policy applies to the Blackpanda website and governs data collected and used on our site and for its services.
COLLECTION AND USE OF INFORMATION
Personal Information
At Blackpanda, our intent is to give you as much control as possible over your personal information. In general, you can visit https://www.blackpanda.com without telling us who you are or revealing any information about yourself. There are times, however, when we may require information from you, such as your name and address. It is our intent to advise you prior to collecting information from you on the Internet.
If you choose to give us personal information via the Internet that we or our business partners may need—to correspond with you, process an order, or provide you with a subscription, for example—it is our intent to let you know how we will use such information. If you tell us that you do not wish to have this information used as a basis for further contact with you, we will respect your request. Please be advised that we keep track of the domains from which people visit us. We analyze this data for trends and statistics, and then discard it.
Information Security and Quality
We are aware of Internet users’ concerns about the privacy of their information. We have security measures in place to protect the loss, misuse, and alteration of the information under our control. Access to our system is limited to specified Blackpanda employees and is carefully monitored.
In addition, we intend to protect the quality and integrity of your personally identifiable information. We have implemented appropriate technical and managerial procedures to maintain information that is accurate, current, and complete. We will make a sincere effort to respond to your requests to correct personal information inaccuracies in a timely manner.
Confidential Information
Blackpanda does not want to receive confidential or proprietary information from you through our website. Please note that any information or material sent to Blackpanda will be deemed NOT to be confidential. By sending Blackpanda any information or material, you grant Blackpanda an unrestricted, irrevocable license to use, reproduce, display, perform, modify, transmit, and distribute those materials or information, and you also agree that Blackpanda is free to use any ideas, concepts, know-how, or techniques that you send us for any purpose.
E-mail and Direct Mail Marketing
From time to time, Blackpanda may engage in e-mail and direct mail marketing. E-mail or direct mail address lists for these marketing campaigns are compiled from information voluntarily provided by you or based upon information gathered by or from Blackpanda.
WE DO NOT SEND OR SUPPORT THE DELIVERY OF UNSOLICITED COMMERCIAL E-MAIL (A.K.A. “SPAM”).
In order to receive an e-mail message that is part of a marketing campaign created by Blackpanda, you must have chosen to receive e-mail from us. To further ensure we have your consent, we make sure each e-mail we send you presents an additional opportunity to opt-out of receiving future e-mails. Thus, if you are not interested in receiving future e-mails from us, you may choose to opt-out.
We reserve the right to send you certain communications relating to Blackpanda services and products, such as service announcements, administrative messages, etc. that are in conjunction with services being provided to you by Blackpanda, without offering you the opportunity to opt-out of receiving them.
Children
We are committed to protecting the privacy of children. Blackpanda’s services are not designed or intended to attract children under the age of 13. We do not collect personal information from any person we actually know is under the age of 13.
INFORMATION USE AND SHARING
Generally, your information will be used solely to market opportunities to you and to inform you of products or services available from Blackpanda.
We will not rent, sell, or share any personal information we gather from you to third parties except as indicated below or to provide information regarding the products or services you have requested.
There are other circumstances where your information may be shared with other parties for non-marketing purposes. The following describes the ways that your information may be disclosed in the normal course of business to provide our services:
PARTNERS
We may provide information to trusted partners who work on behalf of or with Blackpanda under confidentiality agreements. These companies may use your personal information to help Blackpanda communicate with you about offers from us and/or our partners. However, these companies do not have an independent right to use, share, or sell your personal information.
Other Websites and Your Privacy
The Blackpanda website contains links to other websites. Once you select a link that takes you to another website, you are subject to the privacy policy of the website containing that page. Please note that these other websites may have privacy policies that differ from those of Blackpanda. We have no control over any personal information you choose to provide to those websites and Blackpanda is not responsible for the privacy practices or the content of such websites.
Third-Party Processors
We may occasionally send information about members of our database to third-party processors (“Third Party Processors”) to organize, administer, process, append, and/or analyze our data on our behalf. We may also use Third Party Processors to deliver offline materials to you. All such Third-Party Processors are prohibited from using your personal information except to provide these services to Blackpanda, and they are required to maintain the confidentiality of your information.
Legal Requests/Questionable Activities
Blackpanda cooperates with law enforcement inquiries, as well as with other third parties to enforce laws, such as: intellectual property rights, fraud and other rights, and to help protect you from malicious actors. Therefore, in response to a verified request by law enforcement or other government officials relating to a criminal investigation or alleged illegal activity, we can (and you authorize us to) disclose your name, address, telephone number, email address, usage history, IP address, access times and fraud complaints without a subpoena. Further, we can (and you authorize us to) disclose your name, street address, city, state, zip code, country, phone number, email, IP address, access times and company name to Clients under confidentiality agreement, as we in our sole discretion believe necessary or appropriate in connection with an investigation of fraud, intellectual property infringement, piracy, or other unlawful activity. We also reserve the right to share information in order to investigate, prevent or take action regarding illegal activities, suspected fraud, situations involving personal threats to the physical safety of any person, violations of Blackpanda’s Terms of Use, or as otherwise required by law.
Sale/Merger
We reserve the right to transfer information about you if Blackpanda is acquired by another company (either in a stock sale or a sale of substantially all of Blackpanda’s assets) or merged with another company.
Limitations on Privacy
Due to the existing regulatory environment, we cannot ensure that all of your private communications and other personal information will never be disclosed in ways not otherwise described in this Privacy Policy. By way of example (without limiting the foregoing), third parties may unlawfully intercept or access transmissions or private communications, or users may abuse or misuse your personal information that they collect from the Blackpanda website without authorization. Therefore, although we exceed industry standard practices to protect your privacy, we do not promise, and you should not expect, that your personal information or private communications will always remain private.
© 2023 BLACKPANDA. All Rights Reserved.
Website Terms & Conditions
These Terms of Use govern the use of the Blackpanda Pte Ltd (“Blackpanda”) website (the “Website”) and any information exchanged by means of the Website. By accessing and using the Website, you indicate your acknowledgment and acceptance of the terms and conditions set forth in the Terms of Use.
Laws and Regulations
Your access and use of the Website are subject to all applicable international, federal, state, and local laws and regulations.
Copyrights and Trademarks | © 2023 Blackpanda Pte Ltd
Permission to use, copy, and distribute the documentation on the Website without fee is hereby granted for non-commercial use only, provided that the above copyright notice appears in all copies and that both that copyright notice and this permission notice appear in supporting documentation, and that the name of Blackpanda is not used in advertising or publicity pertaining to distribution of this documentation without specific, written prior permission. All images used on the Website are owned or licensed by Blackpanda for use on the Website only. Unauthorized use is prohibited.
All product names appearing in type form different from that of the surrounding text are trademarks of Blackpanda.
Nothing contained herein shall be construed as conferring any license or right under any Blackpanda patent, copyright, or trademark.
Disclaimer
The information on the Website is provided “as is” without any warranties, express or implied, including but not limited to the implied warranties of merchantability, fitness for a particular purpose, or non-infringement. Blackpanda makes no representation or warranty that the information contained on the Website will be timely or error-free. Blackpanda has not reviewed all the sites that may be linked to the Website and does not endorse and is not responsible for the content of any off-site pages or any other sites linked to these sites. Your decision to visit linked sites is at your own risk.
Applicable Laws
The Website [https://www.blackpanda.com] contains information about products and services which may or may not be available in any particular country, and if applicable, may have received approval or market clearance by a governmental regulatory body under certain restrictions specific to that particular country. Each country has specific laws and regulations governing the communication of information on the Internet. Nothing herein should be construed as a solicitation or promotion for any product or service which is not authorized by the laws and regulations of the country where the user resides.
Linked Internet Site
Blackpanda prohibits unauthorized hypertext links to the Website. Blackpanda reserves the right to disable any unauthorized links or frames and specifically disclaims any responsibility for the contents of any other internet sites linked to the Website. Other internet sites which are linked to the Website have their own terms and conditions of use and privacy policies. Access to any other internet sites linked to the Website is at your own risk.
You should be aware that linked sites may contain rules and regulations, privacy provisions, confidentiality provisions, transmission of personal data provisions, and other provisions that differ from the provisions provided on the Website. Blackpanda is not responsible for such provisions, and expressly disclaims any and all liability related to such provisions.
Jurisdiction and Venue
The Website is controlled and operated by Blackpanda from its offices within Singapore. Any claim relating to the Website shall be governed by the laws of Singapore. You and Blackpanda agree that any action arising out of or related to use of the Website or these terms and conditions must be submitted to the exclusive jurisdiction of Singapore law. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Website or these terms and conditions must be filed within one (1) year after such claim or cause of action arose. Your conduct may be subject to other laws. Use of the Website is unauthorized in any jurisdiction that does not give effect to all provisions of these terms and conditions, including without limitation this paragraph.
Violation of Terms and Conditions
Blackpanda reserves the right to seek all remedies available at law and in equity for violations of these Terms of Use, including the right to block access from a particular Internet address or by particular users of the Website.
Miscellaneous
Blackpanda operates the Website and reserves the right to change these Terms of Use at any time and from time to time without notice. Changes in these terms and conditions will be effective upon posting or as otherwise specified by Blackpanda. The failure of Blackpanda to exercise or enforce any right or provision of these terms and conditions shall not constitute a waiver of such right or provision.
© 2023 BLACKPANDA. All Rights Reserved.
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