Business Terms

Last updated on November 29, 2018

These Business Terms (these “Terms”) govern the Services to be provided by Pana Industries, Inc. (“Company”) to the Customer identified in the proposal, order, statement of work, or similar document incorporating by reference these Terms (the “Order”). These Terms and the Order are referred to as this “Agreement”. In the event of a conflict between these Terms and the Order, these Terms shall control unless the conflicting term of the Order expressly states otherwise.

If Customer has signed a separate written agreement with Company for the provision of the Services (“Services Agreement”), the terms of the separate Services Agreement will supersede these Terms.

Company and Customer agree as follows:

1. Definitions.

1.1 “Customer Account” means Customer’s account on the Pana Platform through which End Users may access and use the Services.

1.2 “Customer Data” means the data and content provided by Customer in the course of Customer’s access to, and use of, the Services.

1.3 “Documentation” means the specifications and functional requirements published by Company for the Services and provided to Customer in either electronic, online help files or hard copy format, but specifically excluding any marketing, promotional, and similar materials.

1.4 “End User” means Customer’s officers, employees, directors, independent contractors, Guests, and other individuals who are authorized by Customer to access and use the Services.

1.5 “Expenses” mean any travel costs incurred by a Guest that are reimbursable by Customer, plus any associated Bank Fees (defined below).

1.6 “Guest” means each person for whom the Customer or any End Users coordinates travel.

1.7 “Intellectual Property Rights” means any and all worldwide intellectual property rights, including copyrights, trademarks, service marks, trade secrets, know how, inventions, patents, patent applications, moral rights and other proprietary rights, whether registered or unregistered.

1.8 “Pana Platform” means Company’s proprietary online platform through which Company provides the Services.

1.9 “Travel Purchases” mean Expenses and any purchases made by an End User via the Pana Platform. Travel Purchases are separate and apart from Service Fees.

1.10 “Trip” means each separate trip for which Customer or any End Users uses the Services to coordinate travel or lodging, or to make Travel Purchases.

1.11 “Service Fees” means the fees for the Services set forth in the Order.

1.12 “Services” means those services ordered by Customer pursuant to an Order which may be accessed through the Pana Platform.

2. Services.

2.1 Delivery of the Services. Subject to the terms and conditions of this Agreement, Company shall deliver the Services to Customer pursuant to this Agreement during the applicable Service Term (defined below). The Services are made available through the Internet. Customer is solely responsible for acquiring, installing and maintaining all connectivity equipment, Internet and network connections, hardware, software and other equipment necessary to access the Pana Platform and use the Services.

2.2 Access and End Users. Each End User will access the Pana Platform and the Services using a unique user identification name and password (“User ID”). Customer shall be responsible for ensuring the security and confidentiality of User IDs for all End Users. User IDs may not be shared with any person other than the specific End User to whom the User ID is assigned. Except to the extent arising from Pana’s gross negligence or willful misconduct, Customer will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify Company promptly of any such unauthorized use. Customer is solely responsible for activity taken in connection with the Customer Account, including the booking or requesting of a Trip, whether or not such activity is authorized by Customer. Prior to accessing or using the Pana Platform or the Services, each End User may be required to: (a) register with Company and provide information required by Company in order to provide the Services, (b) create a profile on the Pana Platform, and (c) agree to abide by Company’s then-current end-user terms of service.

2.3 Support. Company will provide Customer the Services in accordance with the Service Level Terms attached hereto as Exhibit A and shall provide reasonable technical support in accordance with the terms set forth in Exhibit B. If Customer wishes to obtain additional support or consulting services concerning the Services, such services may be provided in Company’s discretion on a time and materials basis at Company’s then-current rates, or as otherwise agreed by the parties.

2.4 Third Party Integrations. From time to time Company may enable Customer to access and use the Services through a third party platform or other third party offering (“Third Party Offerings”). Customer decides whether or not to use a Third Party Offering in its sole discretion. Third Party Offerings may enable a third party to access and use data provided by Customer and its End Users. Company makes no representation or warranty about any Third Party Offering and is not responsible for Customer’s access to or use thereof. Company is not responsible for any error or disruption in the Services resulting from a Third Party Offering.

3. Proprietary Rights and Restrictions on Use.

3.1 Ownership. The Pana Platform, the Services (including any updates or enhancements thereto), the look and feel and layout of the Pana Platform and any reports or deliverables generated in connection with the Services, and all worldwide Intellectual Property Rights therein, are the exclusive property of Company and its licensors. All rights in and to the Pana Platform and the Services not expressly granted to Customer in this Agreement are reserved by Company.

3.2 Restrictions. Except as expressly permitted in this Agreement or as otherwise authorized by Company in writing, Customer will not, and will not permit any End User to (a) modify, adapt, alter, translate, or create derivative works from the Pana Platform or the Services; (b) sublicense, lease, rent, loan, sell, distribute, make available or otherwise transfer the Services or access to the Pana Platform to any third party, (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Services or the Pana Platform in order to (i) build a competitive product or service, (ii) build a product using similar ideas, features, functions or graphics of the Service, or (iii) copy any ideas, features, functions or graphics of the Service; (d) interfere in any manner with the operation of the Services or the Pana Platform; (e) remove, alter, or obscure any proprietary notices (including copyright notices) of Company or its licensors displayed in connection with the Services or on the Pana Platform; or (f) otherwise use the Services or the Pana Platform except as expressly allowed under this Agreement.

4. Customer Data. Customer acknowledges and agrees that Company requires access to certain data and content from Customer in order to provide the Services (“Customer Data”). Customer hereby grants to Company a non-exclusive, non-transferable right and license to use the Customer Data for the limited purpose of performing Company’s obligations hereunder for the benefit of Customer or the applicable End User. As between Company and Customer, Customer retains all right, title and interest in and to the Customer Data, and Company acknowledges that it neither owns nor acquires any additional rights in or to the Customer Data by virtue of this Agreement except as expressly provided herein. Notwithstanding anything to the contrary, Company shall have the right collect and analyze data and other information relating to the provision, use and performance of the Pana Platform and the Services (including, without limitation, information concerning Customer Data, and data derived therefrom), and Company will be free (during and after the term hereof) to: (a) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (b) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.

5. Fees and Payment.

5.1 Services Fees; Payment. Customer will pay Company the Service Fees (including any Minimum Service Fees) in accordance with the terms of the Order. If Customer’s use of the Services exceeds the Minimum Service Fees set forth on the applicable Order, Customer shall be billed for such usage and Customer agrees to pay the additional Service Fees in the manner provided herein. Company reserves the right to change the Service Fees or any other applicable charges or both and to institute new charges and Service Fees at the end of the Initial Service Term or then-current Renewal Service Term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department. Except as expressly stated in this Agreement, all fees are non-refundable.

5.2 Expenses. Customer’s End Users may upload receipts to the Pana Platform and be reimbursed for Expenses. If Customer’s End Users upload a receipt for Expenses and Customer has satisfied its obligations in this Section 5, Company will reimburse the End User for such Expenses, and Customer will be responsible for reimbursing Company for such Expenses in accordance with the payment terms set forth herein. Customer shall also promptly reimburse Company for any transaction fees, currency conversion fees, surcharges, or other costs assessed by a financial institution on any transaction to a foreign bank account (the “Bank Fees”).

5.3 Expense Reimbursement Policies. Customer shall ensure that all Customer expense reimbursement policies (including without limitation any daily limitations, exclusions, and reporting requirements) are uploaded to the Services in the manner reasonably requested by Company (the “Customer Reimbursement Policies”). Company may perform a courtesy review of the applicable receipts and any supporting information prior to reimbursement, but Customer is ultimately responsible for ensuring that its End Users comply with the Customer Reimbursement Policies.

5.4 Travel Purchases Payment Method. Each Order shall specify whether Customer shall pay Travel Purchases using a Prepaid Account, a Partner Account, or Customer credit card. Customer may change is preferred payment method from time to time upon mutual written agreement of the parties. Depending on which payment method is chosen for the applicable Order, the following terms shall apply:

(a) Prepaid Accounts. If an Order specifies that Customer shall pay using a Prepaid Account, Customer agrees to establish and maintain an account with Company to be used for the payment of Travel Purchases (a “Prepaid Account”). Customer will maintain a minimum balance in the Prepaid Account equal to the greater of: (a) $10,000, or (b) the average monthly volume of Travel Purchases during the preceding three (3) months. Customer understands that Company may, but is not required to, restrict any transaction using the Prepaid Account that would cause the balance to fall below $0.00. Company may also, but is not required to, reject any transaction using a Prepaid Account that has a balance of less than $0.00. Customer will fund the Prepaid Account with $10,000 within ten (10) days of the effective date of the Order, and Customer acknowledges that Travel Purchases cannot be completed through the Services until this account has been funded. Thereafter, Company may invoice Customer for the amount to refill the balance as frequently as needed, which invoices shall be paid in full and without setoff within ten (10) days following the date of the applicable invoice. At the termination of this Agreement, Company will provide Customer apply any amounts remaining in the Prepaid Account to any amounts due to Company hereunder, and shall promptly refund the remainder to Customer.

(b) Partner Account. If an Order specifies that Customer shall pay using an account with one of Company’s integrated banking partners (a “Partner Account”), Company will bill this account for all Travel Purchases. Customer will provide Company with accurate and complete account information and appropriate authorization to make purchases from the Partner Account within ten (10) days of the effective date of the applicable Order, and Customer acknowledges that Travel Purchases cannot be completed through the Services until this information has been provided.

(c) Customer Credit Card. If an Order specifies that Customer shall pay using a Customer credit card, Company will bill the credit cards or debit cards provided by Customer for all such Travel Purchases. Any such Travel Purchases that are paid via a credit card or debit card will be subject to a three percent (3%) convenience fee. Customer will provide Company with accurate and complete billing information including legal name, address, telephone number, and credit card or debit card billing information within ten (10) days of the effective date of the applicable Order, and Customer acknowledges that Travel Purchases cannot be completed through the Services until this information has been provided.

5.5 Account Information. Customer shall provide Company with accurate and complete billing information including legal name, address, telephone number, and credit card or debit card billing information if applicable. If any such information is false or fraudulent, Company reserves the right to terminate Customer’s use of the Services, in addition to seeking any other remedies available to Company. Company is not responsible for any charges or expenses (e.g., for overdrawn accounts, exceeding credit card limits, etc.) resulting from charges billed by Company.

5.6 Delinquent Accounts. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Services. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.

5.7 Purchase Orders. If Customer requires the use of a purchase order or purchase order number, Customer (a) must provide the purchase order number at the time of purchase and (b) agrees that any terms and conditions on a Customer purchase order will not apply to this Agreement and are null and void.

6. Warranties. Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advanced notice in writing or by e-mail of any scheduled disruption of the Services. HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. Company makes no representation or warranty that Travel Purchases will be deductible under applicable tax law. Customer should consult with its tax preparer to understand its obligations under applicable law. Customer is solely responsible for ensuring its use of the Services and reimbursement of END USERS is in accordance with all applicable laws and regulations, including without limitation making any determination as to whether an END USER requires a visa or other authorization prior to incurring any Travel Purchases. customer represents and warrants that: (a) END USERS are permitted under all applicable laws and regulations to incur travel purchases; (b) Company may reimburse END USERS under applicable laws without any additional authorizations or requirements; (c) Customer shall COMPLY with all applicable tax laws related to Travel Purchases.

7. Confidentiality.

7.1 Definition. “Confidential Information” means the terms and conditions of this Agreement and all information related to a party’s business, financial affairs or operations, including but not limited to information related to business plans, technology, source code, product or service development plans, pricing, techniques and methods, which is either marked or identified as confidential or which the receiving party knew or reasonably should have known, under the circumstances, was confidential.

7.2 Protection. The party receiving Confidential Information (“Receiving Party”) from the other party (“Disclosing Party”) will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees or contractors of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.

7.3 Exceptions. The Receiving Party’s obligations under Section 7.2 above with respect to any Confidential Information of the Disclosing Party will terminate if and when the Receiving Party can document that such information: (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) is independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. In addition, the Receiving Party may disclose Confidential Information of the Disclosing Party to the extent that such disclosure is: (i) approved in writing by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (iii) required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure in writing prior to making such disclosure and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.

7.4 Return of Information. Except as otherwise expressly provided in this Agreement, the Receiving Party will return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the written request of the Disclosing Party or upon the expiration or termination of this Agreement, other than any such information that Company is required by law to retain. Upon the request of the Disclosing Party, the Receiving Party will certify in a writing signed by an officer of the Receiving Party that it has fully complied with its obligations under this Section 7.4.

7.5 Publicity and Public Evaluation. Customer shall not, without Company’s prior written consent, publish or disclose to any third party an evaluation of the Service. Company may, without Customer’s prior consent, display Customer’s name and/or logo on any list of its customers.

7.6 Injunctive Relief. Each party acknowledges that a breach or threatened breach of this Section 7 would cause irreparable harm to the non-breaching party, the extent of which would be difficult to ascertain. Accordingly, each party agrees that, in addition to any other remedies to which a party may be legally entitled, the non-breaching party shall have the right to seek immediate injunctive or other equitable relief in the event of a breach of this Section 7 by the other party or any of its employees or agents.

8. Term and Termination.

8.1 Term. Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (each a “Renewal Service Term”), unless either party requests termination in writing at least thirty (30) days prior to the end of the then-current term. The Initial Service Term and each Renewal Service Term are referred to collectively as the “Service Term”.

8.2 Termination. In addition to any other remedies it may have, either party may terminate this Agreement by written notice in the event the other party is in material breach of any obligation under this Agreement and fails to cure such breach within thirty (30) days following its receipt of written notice thereof. In addition, Company may also terminate the Agreement immediately upon written notice in the event (a) Customer fails to pay any amounts payable hereunder within ten (10) days after receiving written notice from Company that payment is past due, or (b) Customer breaches any provision in Section 3.2 or 3.3.

8.3 Effects of Termination. Upon termination or expiration of this Agreement for any reason, any amounts owed to Company under this Agreement before such termination or expiration will be immediately due and payable, all rights granted by Company to Customer in this Agreement will immediately cease to exist and Customer must discontinue all use of the Services and return to Company or destroy all copies of Company Confidential Information in Customer’s possession or control. In the event that Company terminates this Agreement for Customer’s uncured breach of this Agreement, Customer shall be responsible for all Service Fees that would be payable hereunder for the remainder of the then-current Initial Service Term or Renewal Service Term plus any Travel Purchases made prior to the date of termination. Sections 1, 3, 4, 5, 7, 8.3, 9, 10, and 11 together with any accrued payment obligations, will survive expiration or termination of this Agreement for any reason.

9. Indemnification.

9.1 By Customer. Customer will indemnify, defend, and hold harmless Company from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of any claim by a third party against Company or its affiliates regarding or relating to: (a) Customer Data; (b) Customer’s use of the Services in violation of this Agreement or applicable law; or (c) End Users’ use of the Services in violation of this Agreement or applicable law.

9.2 By Company. Company will defend at its own expense any action against Customer brought by a third party to the extent that the action is based upon a claim that the Pana Platform infringes upon or misappropriates a United States patent or copyright of the third party. Company will pay those costs and damages finally awarded against Customer in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. The foregoing obligations are conditioned on Customer (a) notifying Company promptly in writing of such action, (b) giving Company sole control of the defense thereof and any related settlement negotiations, and (c) cooperating and, at Company’s request and expense, assisting in such defense or settlement. If the Pana Platform becomes, or in Company’s opinion is likely to become, the subject of an infringement claim, Company may, at its option, either (i) procure for Customer the right to continue using the Services, (ii) replace or modify the Pana Platform so that it becomes non-infringing, or (iii) terminate this Agreement and refund all Services Fees paid by Customer to Company for the period falling beyond the effective date of the termination. Notwithstanding the foregoing, Company will have no obligation under this Section or otherwise with respect to any infringement claim based upon (w) any Customer Data, (x) any use of the Services not in accordance with this Agreement or applicable law, (y) any use of the Services in combination with other products, equipment, software, or data not supplied by Company, or (z) any modification of the Services or Pana Platform by any person other than Company. THIS SECTION STATES COMPANY’S ENTIRE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR THIRD PARTY CLAIMS AND ACTIONS.


11. Miscellaneous.

11.1 Terms Modification. Company may revise these Terms from time to time, upon written notice to Customer. Any such modification will become effective upon the commencement of the Renewal Service Term following the date of such notice. If Customer does not agree to the revised Terms, Customer may choose to not renew the then-current Term.

11.2 Governing Law; Venue. This Agreement shall be governed by the laws of the State of Colorado without regard to its conflict of laws provisions. Any action arising in connection with this Agreement shall be resolved exclusively by the State and Federal courts for Denver, Colorado. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

11.3 Relationship of Parties. The relationship of the parties established under this Agreement is that of independent contractors and neither party is a partner, employee, agent, or joint venture partner of or with the other, and, except as expressly set forth in this Agreement, neither party has the right or authority to assume or create any obligation on behalf of the other party.

11.4 Notices. All notices, consents, and approvals under this Agreement must be delivered in writing by courier or internationally recognized overnight delivery service, or by certified or registered mail (postage prepaid and return receipt requested) to the address and are deemed given when received. Notices to Customer may also be sent to the applicable account email address and will be deemed given when sent. Notices to Company must be sent to Pana, 1624 Market Street #211, Denver, CO 80202 with a copy to the Legal Department.

11.5 Assignment. This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. Notwithstanding the previous sentence, Customer may assign its rights and obligations under this Agreement to a parent, affiliate, or subsidiary, or to a successor, whether by way of merger, sale of all or substantially all of its assets, or otherwise. Company may transfer and assign any of its rights and obligations under this Agreement without consent. Any purported or attempted assignment in violation of this paragraph is void and of no force or effect.

11.6 Successors and Assigns. Except as otherwise expressly provided in this Agreement, this Agreement inures to the benefit of and binds the parties and such parties’ permitted successors, assignees, and other legal representatives.

11.7 Severability. If a provision of this Agreement is unenforceable, invalid, or illegal, then the intent of the parties is that (a) the validity, legality, and enforceability of the remaining provisions of the Agreement remain in force and not be affected in any way, and (b) the unenforceable, invalid, or illegal provision remain in force, and be interpreted or reformed to accomplish the objectives of such provision, to the greatest extent possible under applicable law.

11.8 Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.

EXHIBIT A: Service Level Terms

The Services shall be available 99.9%, measured monthly, excluding Excused Delay. Customer’s sole and exclusive remedy, and Company’s entire liability, in connection with Services availability shall be that for each period of downtime lasting longer than one (1) hour, Company will credit Customer five percent (5%) of Service Fees for each period of thirty (30) or more consecutive minutes of downtime; provided that no more than one (1) such credit will accrue per day. Downtime shall begin to accrue as soon as Customer (with notice to Company) recognizes that downtime is taking place, and continues until the availability of the Services is restored. In order to receive downtime credit, Customer must notify Company in writing within twenty four (24) hours from the time of downtime, and failure to provide such notice will forfeit the right to receive downtime credit. Such credits may not be redeemed for cash and shall not be cumulative beyond a total of credits for one (1) week of Service Fees in any one (1) calendar month.. For purposes herein, “Excused Delay” shall mean downtime due to: (i) scheduled maintenance, (ii) maintenance or service interruptions requested by Customer and implemented by Company, (iii) Customer’s breach of any provision of this Agreement that directly caused the downtime, (iv) performance of Internet services or downtime of utilities or other third party connections, or (v) force majeure.

EXHIBIT B: Support Terms

Company will provide technical support to Customer via electronic mail on weekdays during the hours of 9:00 am through 5:00 pm Mountain time, with the exclusion of Federal holidays (“Support Hours”).

Customer may initiate a helpdesk ticket during Support Hours by emailing

Company will use commercially reasonable efforts to respond to all helpdesk tickets within one (1) business day.