Early Adopter Program Agreement
PLEASE READ ALL OF THE FOLLOWING TERMS AND CONDITIONS OF THIS PENDO EARLY ADOPTER PROGRAM AGREEMENT (“AGREEMENT”) CAREFULLY. BY CLICKING ON THE “YES” OR “I ACCEPT” BUTTON (OR OTHER BUTTON OR MECHANISM DESIGNED TO ACKNOWLEDGE AGREEMENT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT), OR BY DOWNLOADING, INSTALLING, OR ACCESSING THE PRE-RELEASE SOFTWARE OR BETA FEATURE, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND YOUR LEGAL ENTITY (WHETHER A COMPANY, ORGANIZATION, INSTITUTION, AGENCY, OR DEPARTMENT) TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT.
The purpose of the Early Adopter Program (the “Program”) is to make Early Access Software, as defined below, available to Program participants for the purpose of providing Pendo with feedback on the quality and usability of the Early Access Software. This Early Adopter Program Agreement (the “Agreement”) is by and between Pendo and you, as the authorized representative of your legal entity (“Licensee” or “You”).
1. “Early Access Software” means software, services, tools, or features, which include without limitation scripts, code snippets, utilities, configuration profiles, sample code, troubleshooting applications, and bug submission tools, that are designated as alpha, pre-beta, beta, seed, early access or pre-release versions of Pendo.
2. License. Pendo grants to You a non-exclusive, non-transferable, non-sublicensable license to access and use the Early Access Software solely for the purposes of testing, evaluation, and research. You shall not use the Early Access Software in violation of Pendo’s Acceptable Use Policy.
3. Ownership. Pendo retains all title, interest, and ownership rights in and to the Early Access Software including all improvements, modifications, and enhancements made thereto, and all associated documentation, materials, or other information that Pendo makes available to you. Except for those rights expressly granted herein, no other rights are granted, express or implied, to You.
4. Confidentiality. The Early Access Software, the fact of its existence, and all associated documentation, materials, or other information disclosed by Pendo to you hereunder or otherwise in connection with the Early Access Software, including without limitation any designs, performance data, usage data, and other information relating to the Early Access Software, is Pendo’s “Confidential information”. You must keep all Confidential Information secret and use it only for purposes of participation in the Program. You must immediately tell Pendo if you are legally required to disclose Confidential Information.
5. Termination. You may terminate this Agreement at any time, for any reason, but only by returning or destroying any and all Confidential Information that is in your possession or control. Pendo may terminate this Agreement at any time, with or without cause, immediately upon written notice to you. This Agreement shall terminate upon the release by Pendo of a publicly or commercially available version of the Early Access Software. Pendo does not guarantee that any such publicly or commercially available version will be released.
6. Data. You agree that Pendo will obtain information and data from You in connection with Your downloading, installing, accessing, testing, or using the Early Access Software including, without limitation, personal information or personal data. Pendo will also collect, use, store, transmit, transfer, process, and analyze (collectively, “Process”) diagnostic, technical, and usage logs and information related to Your use of the Early Access Software, and use this information to troubleshoot and support issues, provide updates, analyze trends, and improve Pendo’s products and services. You agree that Pendo may share such diagnostic, technical, and usage logs and information with third-party vendors to allow them to improve their products and services that operate in connection with Pendo-branded products or services. You hereby consent to Pendo Processing this information, including, if any, personal information or personal data, in conformity with Pendo’s Privacy Policy, as updated from time to time. You agree to comply with all applicable laws and regulations, including all applicable privacy and data collection laws and regulations with respect to any use or collection of data and information through the use of the Early Access Software and Your deployment of the Early Access Software to end users. You represent and warrant that You will provide sufficient notice and disclosure of the terms of this Agreement, and obtain all necessary rights and consents, either from the end user or, where necessary, the end user’s parent or legal guardian, prior to deploying Early Access Software to end users and the direct and incidental collection of end user data, including personal information or personal data, that may arise.
7. Feedback. As part of the Program, Pendo may provide You with the opportunity to submit bug reports, surveys or questionnaires, enhancement requests, issue reports, and/or support information concerning the functionality, performance, and usability of the Early Access Software (collectively, “Feedback”) to Pendo. Feedback provided to Pendo through any of the foregoing methods in connection with the Beta Product may be used by Pendo and its third-party vendors in connection with Pendo-branded products to improve or enhance products, services, and/or features and, accordingly, Pendo shall have a non-exclusive, perpetual, irrevocable, royalty-free, worldwide right and license to use, reproduce, disclose, sublicense, distribute, modify and otherwise exploit Feedback without restriction.
8. No Warranty. THE EARLY ACCESS SOFTWARE MAY CONTAIN ERRORS, DEFECTS, OR BUGS, AND MAY CAUSE FAILURE, CORRUPTION, OR LOSS OF DATA IN YOUR SUBSCRIPTION. THE EARLY ACCESS SOFTWARE IS PROVIDED FOR LIMITED EVALUATION ONLY AND IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PENDO SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
9. Disclaimer of Liability. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, YOU ASSUME ALL RISKS AND ALL COSTS ASSOCIATED WITH DOWNLOADING, INSTALLING, ACCESSING, TESTING, AND USE OF THE EARLY ACCESS SOFTWARE. IN NO EVENT SHALL PENDO HAVE LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. PENDO’S LIABILITY FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THE PROGRAM OR HARM CAUSED BY ANY EARLY ACCESS SOFTWARE SHALL NOT EXCEED THE MONETARY VALUE OF ANY FEEDBACK PROVIDED BY YOU HEREUNDER, OR FIFTY U.S. DOLLARS (US$50), WHICHEVER IS LESS.
10. Indemnification. You will defend and indemnify Pendo and its affiliates, directors, officers and employees against all liabilities, damages, losses, costs, fees (including legal fees), and expenses relating to any allegation or third-party legal proceeding arising from your use of the Early Access Software. Any settlement requiring Pendo to admit liability or to pay any money will require Pendo’s prior written consent. Pendo may join in the defense with its own counsel at its own expense.
11. Miscellaneous. This Agreement shall be governed by the laws of North Carolina without reference to conflict of laws principles. You and Pendo are independent contractors, and this Agreement does not create an agency, partnership or joint venture. The Early Access Software is not a Service as defined in Pendo’s Software Services Agreement. Your rights and obligations under this agreement are specific to You, and you cannot assign them to anyone else. Pendo may freely assign or delegate its rights and obligations under this agreement. You shall comply in all respects with all U.S. and foreign export and re-export laws and regulations applicable to the Early Access Software provided hereunder. This is the entire agreement between the parties relating to the subject matter hereof. No waiver or modification of this Agreement shall be valid unless in writing signed by each party. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement shall remain in full force and effect. Pendo reserves the right to modify the terms, conditions, and policies of the Program at any time without notice.
