Pass-Through Terms of Use

Capitalized terms have the meaning set forth below or otherwise in the body of the Terms of Use.

“Affiliate” means an entity that controls, is controlled by, or is under common control with a party, where “control” means the direct or indirect ownership of more than 50% of the voting securities or other ownership interest of an entity.

“API” means a set of routines, protocols, and tools for building software applications that defines interactions between multiple software intermediaries.

“Application Key” means a unique API token for use by Customer to access or interface with an environment (such as a browser-based or mobile application).

“Customer” means the entity that is a party to the Terms of Use.

“Customer Data” means any data, information or material that Customer provides or makes available to the Subscription Services, including Customer’s End-User data and Output, excluding, for the avoidance of doubt, any data, information or material of Pendo.

“Documentation” means the official Pendo documents and manuals for the Subscription Services as generally made accessible to Pendo’s customers.

“Effective Date” means the earliest of the date: (i) Customer enters into a Resale Agreement which references the Terms of Use therein, (ii) Customer first clicks “I agree” (or similar button or checkbox) referencing the Terms of Use, or (iii) Customer accesses or uses the Services.

“End-User” means the individual who uses the digital product on which Customer installs Pendo’s Software.

“Event” means a record of a single End-User interaction with a software application (such as a page load, click or hover).

“Output” means the reports, analytics and configured data derived from Customer Data and provided to Customer by Pendo as part of the Services but does not include any components of the Software or Services.

“Pendo” means Pendo.io, Inc., a Delaware corporation on behalf of itself and its Affiliates.

“Professional Services” means consulting services provided by Pendo, if any, as further governed by the Professional Services Addendum and the applicable Professional Services description(s) available at https://www.pendo.io/legal-information/professional-services-descriptions/

“Resale Agreement” means the resale agreement between Customer and Reseller pursuant to which Customer has ordered Services to be provided by Pendo and in connection with which Customer has agreed to the Terms of Use.

“Services” means Professional Services, Subscription Services and other services offered by Pendo.

“Software” means Pendo’s commercially available downloadable software (including all Updates) included with Subscription Services.

“Subscription Services” means the online platform services (including all Updates) and Software that Pendo provides, including one or more Application Keys and endpoints.

“Taxes” means any form of taxation of whatever nature and by whatever authority imposed, including any interest, surcharges or penalties, arising from or relating to the Agreement or any Services, other than taxes based on the net income, property or employees of Pendo.

“Units” means the basis on which fees are established for Subscription Services.

“Updates” means, as applicable, bug fixes, enhancements, upgrades and new releases or versions that are made generally available to Pendo customers.

“User” means a Customer employee or independent contractor who has a business need to use the Subscription Services pursuant to the Agreement.

2.1. Access and Use of Subscription Services. Subject to the terms and conditions of the Agreement, Pendo grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable right to access and use the Subscription Services in accordance with the terms of the Agreement, the Documentation, and Pendo’s Acceptable Use Policy during the term of any such Subscription Services (as set forth in the Resale Agreement) for Customer’s internal business purposes (the “Permitted Purpose”). Only Customer’s Users may access and use the Services (and related Documentation) ordered by Customer hereunder.

2.2. Customer Obligations. Customer is responsible for, and will maintain, the security, completeness and accuracy of Customer’s registration information, account, and passwords. Customer agrees that it will install the latest version of the Software provided by Pendo to access and use the Subscription Services and ensure that it uses the Services only with public domain or properly licensed third-party materials. If Customer becomes aware of any violation of Customer’s registration information, account, or passwords, or use of the Services by a party that is not authorized to access the Services, Customer will immediately terminate the offending party’s access to the Services and notify Reseller. Customer is responsible for its Users’ activity and any breach of the Agreement.

2.3. No Charge Access. Subscription Services provided for evaluation, beta, or release candidate purposes will not be used for production use, and Customer’s access and use right to the Subscription Services in such an instance will terminate on the end date of the predetermined period set forth in the Agreement or immediately upon notice from Pendo or Reseller, in Pendo’s sole discretion. Notwithstanding any other provision contained herein, the Subscription Services and Documentation provided in connection with Subscription Services provided for evaluation, beta, release candidate or free purposes are provided to Customer “AS IS” without indemnification, support, or warranty of any kind, express or implied. Except to the extent such terms conflict with this Section, all other terms of the Terms of Use will apply to the Subscription Services provided for evaluation, beta, release candidate or free purposes.

3.1. Term. The Terms of Use will be effective on the Effective Date and continue for the length of time Customer is authorized to access and utilize any Services as set forth in the associated Resale Agreement, or until terminated as set forth herein. Unless otherwise agreed, these Term of Use and the Subscription Services automatically renew for successive periods of twelve (12) months each, unless either Customer or Reseller provides to Pendo, or Pendo provides to either Customer or Reseller, written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term, or these Terms of Use or the applicable Resale Agreement is sooner terminated as provided herein and therein.

3.2. Termination. Pendo or Customer may terminate the Terms of Use upon written notice to the other if the other party materially breaches any provision of the Terms of Use or if Customer materially breaches any provision of the Resale Agreement and, if capable of cure, fails to cure such breach within thirty (30) days following such written notice thereof. Additionally, Pendo may suspend Customer’s access to the Services and/or terminate the Terms of Use: (a) upon written notice to Customer, if Reseller fails to pay any amount due to Pendo under its Reseller Contract (defined below) on Customer’s behalf for the Services set forth in the Resale Agreement and such failure remains uncured following the cure period specified in its Reseller Contract; and (b) immediately upon written notice to Customer if Customer infringes upon or misappropriates Pendo’s intellectual property.

3.3. Effects of Termination. The expiration or termination of the term of any Services will not impact any other Services or the remainder of the Agreement. If the Agreement is terminated in whole, the Agreement and the terms of all Services ordered in connection therewith will terminate. Upon termination or expiration of the Terms of Use, all access and use rights set forth hereunder will terminate, and Customer’s right to access and use the Services will cease. Upon expiration or termination of the Resale Agreement for any reason, for the avoidance of doubt, Pendo is under no obligation to provide the Services, to refund Customer any fees paid by Customer or to assume any relationship with Customer.

3.4. Access to End-User Data Upon Expiry or Termination. Upon expiration or termination of the Terms of Use, Pendo will disable the corresponding Services. Customer may download its End-User data prior to such expiration or termination and may request a copy of its End-User data for up to ninety (90) days thereafter. Such copy will be provided by Pendo to Customer in an industry-standard format. Thereafter, Pendo will delete the End-User data within thirty (30) days unless otherwise legally prohibited.

3.5. Survival. The provisions of Sections 1, 2.2 (the last two sentences only), 3.3, 3.4, 3.5, 4, 5, 6, 7.3, 8, and 9 and any and all remedies for breach of the Agreement will survive any termination or expiration of the Agreement (in addition to any surviving provisions of the Resale Agreement in accordance with its terms).

4.1. Payment for Services. All charges and fees (“Fees”) and payment terms with respect to the Services, will be agreed between Customer and Reseller and will be paid by Customer in accordance with such terms directly to Reseller. Customer acknowledges and understands that the consideration for the Services under the Agreement will be paid to Pendo directly by Reseller pursuant to a separate agreement between Pendo and Reseller (“Reseller Contract”). Any refund of any portion of Fees that Reseller has actually paid to Pendo on Customer’s behalf for the utilization of the Services for which Pendo agrees to issue will be issued directly to the Reseller and any pass-through of some or all of that amount will be between Reseller and Customer.

5.1. Ownership. Pendo (and/or its licensors) is the sole and exclusive owner of all rights, title and interest in and to the Services, Documentation, and Pendo’s proprietary property (including intellectual property rights therein) and reserves all rights, title and interest in and to the Services and Documentation not expressly granted under the Agreement. No ownership right is conveyed to Customer in the Services, Documentation, or Pendo’s proprietary property, irrespective of the use of terms such as “purchase” or “sale” herein or in any Resale Agreement.

5.2. Feedback. From time to time, Customer or its Users may submit to Pendo (either directly or through Reseller) comments, questions, enhancement requests, suggestions, ideas, process descriptions or other information related to the Services (“Feedback”). Customer on behalf of itself and its Users hereby grants to Pendo a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate the Feedback for any purpose without restriction, attribution or payment to Customer.

5.3. Customer Data. Customer is the sole and exclusive owner of all rights, title and interest in and to the Customer Data (including intellectual property rights therein) and reserves all rights, title and interest in and to the Customer Data not expressly granted under the Agreement. Customer hereby grants Pendo the right to use Customer Data for providing and improving the Services, provided that Pendo does not otherwise violate the Agreement via such use. To the extent data relating to Customer’s End-Users is used to improve the Services, such data will only be used in an aggregated and anonymized form and will not reveal the identity of any End-User, Customer or any natural person. Customer is legally able to provide the Customer Data to Pendo and its Affiliates (including by obtaining appropriate consents for any processing by Pendo) and will be solely responsible for the procurement, accuracy, quality, and content of Customer Data.

5.4. Protection. Each of Pendo and Customer will comply with its respective obligations under applicable data protection laws, and each of Pendo and Customer will maintain a reasonable security program in accordance with industry standards that is designed to protect the security of, and prevent unauthorized access to, Confidential Information and Customer Data. Such security program will include implementation of appropriate administrative, technical and physical safeguards. To the extent applicable, Pendo and Customer will process Personal Data (as defined in the DPA) in accordance with Pendo’s Data Processing Addendum (“DPA”), which is incorporated herein by reference. All references in the DPA to the (a) “Pendo Software Services Agreement” will be read as references to the Terms of Use and (b) “Order Form” will be read as references to the Resale Agreement.

6.1. Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential at the time of disclosure or that reasonably should be understood to be confidential given the nature of the information and/or the circumstances of disclosure, including, without limitation, the terms and conditions of the Agreement, Documentation, business and marketing plans, technology and technical information, product plans and designs, and business processes. “Confidential Information” does not include any information that: (a) is or becomes publicly available without breach by the Receiving Party its officers, employees, agents or contractors under the Agreement; (b) at the time of disclosure was known to the Receiving Party without obligation of confidentiality; (c) is received by the Receiving Party from a third-party not under an obligation of confidentiality; or (d) was independently developed by the Receiving Party without use of or reference to Confidential Information of the Disclosing Party. Each party as Disclosing Party retains its entire right, title, and interest in and to all of its Confidential Information, and no disclosure of Confidential Information hereunder will be construed as a license, assignment, or other transfer of any such right, title, and interest to the Receiving Party or any other person.

6.2. Obligations. The Receiving Party will use the same degree of care to protect the Disclosing Party’s Confidential Information that it uses to protect its own confidential information of like-kind (but not less than reasonable care) including by, except as otherwise authorized by the Disclosing Party, limiting access to the Disclosing Party’s Confidential Information to Receiving Party’s employees, contractors, Affiliates and agents who have a need to know the Disclosing Party’s Confidential Information for purposes consistent with the Agreement and that are subject to confidentiality obligations to the Receiving Party containing protections not materially less protective than those contained herein.

6.3. Compelled Disclosure. Nothing in the Agreement will prevent the Receiving Party from disclosing the Confidential Information pursuant to any judicial or governmental order or as otherwise required by law, provided that, where legally permissible, the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure.

7.1. Limited Warranty. Subject to Section 7.2, Pendo warrants to Customer that during the term of such Services: (a) the Subscription Services will not deviate in a material adverse manner from the Documentation for such Subscription Services then in effect, (b) the Services will be performed in a professional and workmanlike manner by qualified personnel, and (c) Pendo will use commercially reasonable efforts to prevent the introduction of any software traps, viruses, malicious code, or other means or functions designed to damage or corrupt the Subscription Services or otherwise damage or destroy Customer Data (collectively, “Harmful Code”) (though, for the avoidance of doubt, Pendo is not responsible for Harmful Code submitted by Customer, its Users or End-Users).

7.2. Exceptions. The limited warranty set forth in Section 7.1 will not apply to problems arising out of or relating to: (a) Customer’s or its representatives’ modification of or damage to the Subscription Services unless such modification was made pursuant to the Documentation; (b) any unauthorized third-party software or hardware that are operated with or incorporated into the Subscription Services by Customer; (c) negligence, abuse, misapplication or misuse of the Services, including any use of the Subscription Services other than as specified in the Documentation; (d) Customer’s failure to comply with any minimum system requirements specified in the Documentation; or (e) a deficiency in Customer’s systems or network used to access the Subscription Services.

7.3. Disclaimer. EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 7.1, PENDO AND RESELLER MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AND THE SERVICES AND DOCUMENTATION ARE PROVIDED “AS IS.” PENDO AND RESELLER HEREBY DISCLAIM ALL OTHER WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY: (A) IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT; AND (B) IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. NEITHER PENDO NOR RESELLER WARRANTS THAT OPERATION OF OR USE OF THE SERVICES OR DOCUMENTATION WILL BE UNINTERRUPTED OR ERROR-FREE. CUSTOMER ACKNOWLEDGES THAT NEITHER PENDO NOR RESELLER CONTROLS THE TRANSFER OR TRANSMISSION OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. NEITHER PENDO NOR RESELLER IS RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

8.1. Disclaimer of Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL PENDO OR RESELLER (OR ANY OF THEIR AGENTS, AFFILIATES, LICENSORS OR SUPPLIERS) BE LIABLE FOR: (A) ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THE AGREEMENT; OR (B) LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF PENDO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

8.2. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL PENDO’S OR RESELLER’S (INCLUDING THEIR AGENTS’, AFFILIATES’, LICENSORS’ AND SUPPLIERS’) TOTAL LIABILITY UNDER THE AGREEMENT, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, EXCEED, IN THE AGGREGATE, THE FEES THAT RESELLER HAS PAID TO PENDO DIRECTLY ON CUSTOMER’S BEHALF FOR THE SERVICES SET FORTH IN ONE OR MORE ORDER FORMS PURSUANT TO THE RESELLER CONTRACT DURING THE TWELVE (12) MONTH PERIOD ENDING ON THE DATE OF THE FIRST EVENT GIVING RISE TO LIABILITY UNDER THE AGREEMENT.

CUSTOMER ACKNOWLEDGES AND AGREES THAT THE ESSENTIAL PURPOSE OF THIS SECTION 8 IS TO ALLOCATE THE RISKS UNDER THE AGREEMENT BETWEEN PENDO AND THE CUSTOMER AND LIMIT POTENTIAL LIABILITY GIVEN THE SERVICES FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF PENDO WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. PENDO HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE CUSTOMER WITH THE RIGHTS TO ACCESS AND USE THE SERVICES PROVIDED FOR IN THIS AGREEMENT.

9.1. Conflict; Third-Party Beneficiary. In the event any provision of these Terms of Use is deemed to conflict with a provision of the Documentation and/or the Resale Agreement or other agreement between Customer and Reseller with respect to the subject matter of these Terms of Use, the applicable provision of these Terms of Use will control as between Customer and Pendo. Notwithstanding anything to the contrary, any agreement between Customer and Reseller: (a) will not modify any of the terms set forth herein, and (b) is not binding on Pendo. Customer acknowledges the Reseller Contract between Pendo and Reseller that authorizes the Reseller as a reseller requires Reseller to incorporate these Terms of Use into all Resale Agreements, and Customer expressly agrees that Pendo will have the benefit of and right to enforce these Terms of Use against Customer. The Terms of Use will not confer any rights or remedies upon any person other than Pendo and Customer and their respective successors and permitted assigns. For clarity: (i) Reseller is not a third-party beneficiary of the Terms of Use; (ii) Customer is not a third-party beneficiary of any agreement between Pendo and Reseller including the Reseller Contract; and (iii) Pendo is a third-party beneficiary to the Resale Agreement and is entitled to the rights and benefits thereunder and may enforce the provisions thereof as if it were a party thereto.

9.2. Compliance with Laws. Pendo and Customer will comply in all material respects with all laws, regulations, rules, orders and other requirements, now or hereafter in effect, of any governmental authority, applicable to its performance hereunder. The Services and technical information that Pendo provides under the Agreement may be subject to export laws, rules and regulations of the United States and other jurisdictions (“Controlled Materials”). Customer will comply with all applicable export and import laws, rules and regulations, including any local laws in its jurisdiction, concerning its right to import, export or use Controlled Materials. In addition, Customer (including its Affiliates) is not named on any U.S. government denied-party list and will not permit any User to access or use any Subscription Services in a U.S.-embargoed country or region or in violation of any U.S. export law, rule or regulation. Neither Pendo nor Customer has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with the Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.

9.3. Independent Contractors. Pendo and Customer are independent contractors and nothing in the Agreement creates an employment, partnership or agency relationship between the parties or any Affiliate. Each party is solely responsible for supervision, control and payment of its personnel.

9.4. Assignment. Customer may not assign, delegate, or otherwise transfer these Terms of Use or any of its rights, duties or obligations hereunder without the prior written consent of Pendo; provided, however, in the event of the sale or transfer of substantially all of its assets, or a sale, merger or similar change of control transaction, Customer may assign any or all rights and obligations contained herein without Pendo’s consent only together with Customer’s assignment of the Resale Agreement if the Resale Agreement allows such assignment. In such a case, Customer will provide notice to Pendo prior to or within five (5) business days following such assignment. Any assignment in violation of the foregoing will be null and void. The Agreement will be binding upon, and inure to the benefit of, the successors and permitted assigns of the parties.

9.5. Severability. If any term or provision of the Agreement should be declared invalid by a court of competent jurisdiction or by operation of law, the remaining terms and provisions of the Agreement will be unimpaired, and the invalid term or provisions will be replaced by such valid term or provisions as comes closest to the intention underlying the invalid term or provision.

9.6. Notice. Any notice or other communications required or permitted in the Agreement will be in English and in writing and will be deemed to have been duly given to a party: (a) upon receipt, if delivered by hand or sent by nationally recognized overnight delivery service; (b) one (1) business day after sending by email or other electronic method that provides for confirmation of transmission (except that notices of termination or with respect to a dispute or indemnifiable claim may not be sent in this manner); or (c) three (3) days after mailing by first class certified mail, postage prepaid, in each case, to the following address (or such other address as a party may designate in accordance with this Section):

To Pendo:

Pendo.io, Inc.
Attn: Finance
301 Hillsborough Street, Suite 1900
Raleigh, NC 27603

with a copy to:

Pendo.io, Inc.
Attn: Legal
301 Hillsborough Street, Suite 1900
Raleigh, NC 27603
email: [email protected]

To Customer:

Customer contact’s address and/or email address identified by Customer to Reseller in connection with the ordered Services.

9.7. Integration. Except for the documents and instruments specifically referenced herein, the Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous proposals, negotiations, conversations, discussions and agreements between the parties concerning the subject matter hereof. Any terms contained in any other documentation that Customer delivers to Pendo or Reseller, including any purchase order or other order-related document, are void and will not become part of the Agreement or otherwise bind the parties. There are no representations, agreements, arrangements or understandings between the parties relating to the subject matter of the Agreement that are not fully expressed herein, and each party waives any rights and remedies that may otherwise be available to it based upon any such representations, agreements, arrangements or understandings.

9.8. Waiver. No waiver of any provision of the Agreement will be effective unless the same will be in writing and signed by the party against which the waiver is sought to be enforced.

9.9. Applicable Law and Claims. The Agreement will be interpreted, construed and enforced in all respects in accordance with the laws of the State of Delaware without reference to choice of law principles or rules. All claims or proceedings arising under, out of or in connection with the Agreement will be submitted to the exclusive jurisdiction of the state or federal courts located in Wilmington, Delaware, and each party irrevocably submits to such venue and the personal jurisdiction of such courts. To the fullest extent permitted by applicable law, each party waives the right to trial by jury in any legal proceeding arising under, out of or in connection with the Agreement or the transactions contemplated hereby.

9.10. Force Majeure. Neither party will be liable for any failure to perform, or delay in performing, an obligation under the Agreement or loss resulting from a cause over which it does not have direct control.

9.11. Dispute Resolution. Prior to initiating any claim or proceeding under, arising out of or in connection with the Agreement, the parties will make a good faith effort to resolve the underlying dispute. Such good faith effort will include: (a) elevating the issue to management personnel of each party who have the power to settle the dispute on behalf of that party and, if such management-level discussions fail after ten (10) business days, further elevating the matter to a vice president level executive for each party to continue good faith efforts to resolve the matter for an additional ten (10) business days; and (b) reasonably sharing relevant, non-privileged documents, books and records and other materials, as reasonably requested, in connection with the dispute.

Last Revised: September 2023