This Appendix SR (“Appendix”) supplements and is incorporated into the applicable Software Services Agreement or similar (“Services Agreement”) and the Order Form(s), including any materials incorporated by reference therein (together, the “Agreement”) entered into by and between the Customer named therein (together with its Affiliates, “Customer”) and Pendo.io, Inc. (“Pendo”). In the event of a conflict between this Appendix and the Agreement, this Appendix shall supersede and control.
1. Acknowledgement.
a. Customer acknowledges that by executing an applicable Order Form incorporating these terms by reference, Customer agrees and consents to the terms and conditions set forth herein. Capitalized terms used but not defined herein have the meanings defined in the Services Agreement.
b. This Appendix governs the use of the SR Services (defined below). The “SR Services” shall mean the products and services provided by Pendo, including APIs, which are referred to as “Session Replay” as noted in the Order Form and as distinguished by other products provided by Pendo.
2. Access Grant.
Subject to the terms and conditions of this Appendix and the Agreement, for the duration of the term set forth in the Agreement, Pendo grants Customer, a non-exclusive, non-transferable, non-sublicensable worldwide, limited right to access and use the SR Services (as such Services may be modified, revised and updated in accordance with this Appendix).
3. Use Restrictions and Acknowledgments.
a. Customer will solely use Session Replay Services in full compliance with (i)
Pendo’s Acceptable Use Policy; (ii) all applicable laws including, without limitation, Data Privacy Laws (as defined in the applicable Data Processing Addendum to the Services Agreement); and (iii) all applicable End User notifications and consents. In the context of the Session Replay Services, as between Pendo and Customer, Customer is solely responsible for, as required by all applicable laws, providing any and all applicable End User notifications and obtaining all applicable End User consents.
b. Customer acknowledges and agrees that, as between Pendo and Customer in relation to the SR Services,
i. Pendo acts as a “service provider” (or similar term as defined by applicable laws) in relation to the processing of Customer’s End Users’ data.
ii. Pendo has no direct relationship with Customer’s End User.
c. Customer will not use the SR Services, nor allow access to it, in a manner that circumvents or exceeds Customer’s use as set forth in the Agreement, including the applicable Order Form.
d. In respect of the SR Services, Customer will promptly notify Pendo if it violates or reasonably suspects that it violates this Appendix.
4. Indemnification, Disclaimer of Damages, and Liability Limitation.
a. Customer will defend and indemnify Pendo and its employees, officers, directors, and agents from and against any and all claims, actions, demands, and suits by third parties and pay all losses, liabilities, damages, costs, and expenses associated therewith (including reasonable attorneys’ fees) to the extent arising from or related to its use of the SR Services including, without limitation, any data privacy related matters.
5. Termination.
Pendo, in its sole discretion, may terminate Customer’s access to the SR Services in the event of a material breach of the terms hereof by Customer. Pendo’s failing to exercise this right shall not constitute a waiver of any claim or defense against Customer.
