This Pendo OEM Partner Addendum (this “Addendum”) is entered into as of the date OEM Partner accepts this Addendum (including by signing an order form with Pendo) (the “Effective Date”) between the partner entity that is a party to this Addendum (“OEM Partner”) and Pendo.io Inc., a Delaware corporation with an address at 150 Fayetteville Street, Suite 1400, Raleigh, North Carolina 27601 (“Pendo”). Pendo and OEM Partner agree that this Addendum, together with the Pendo Software Services Agreement or other master customer agreement entered between the parties including any addendums and exhibits thereto (the “Terms and Conditions”), form the entire agreement between the parties (the “Agreement”) with respect to OEM Partner’s distribution of the Platform (defined below). Any terms not defined in this Addendum shall have the meaning set forth in the Terms and Conditions. In the event of a conflict between this Addendum and the Terms and Conditions, the terms of this Addendum will control with respect to OEM Partner’s participation in Pendo’s OEM partner program.
1. Access and Restrictions
(a) Access and Use.
(ii) In consideration of the foregoing, Pendo grants to OEM Partner during the Term (defined below) a limited, non exclusive and non-transferable right to integrate the Platform as part of the Integrated Product for purposes of distribution of such Integrated Products to Customers subject to the terms and conditions of the Agreement, including rights for OEM Partner to use and make copies of associated documents, published specifications, user guides, manuals and other enablement materials (the “Documentation”) for purposes of marketing the Platform and internal sales training. Pendo (and/or its licensors) is the sole and exclusive owner of all rights, title and interest in and to the Platform, Documentation, and Pendo’s proprietary property (including intellectual property rights) and reserves all rights, title and interest in the foregoing unless otherwise expressly granted under the Agreement. No ownership right is conveyed to OEM Partners or Customer(s) in the Platform, Documentation or Pendo’s proprietary property, irrespective of the use of terms such as “purchase” or “sale” herein or in any Order Form.
(b) Restrictions. OEM Partner shall not (i) reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from any of the software comprising the Platform; (ii) remove or alter any copyright or other proprietary notices affixed to or embedded in the Platform or the Documentation; (iii) circumvent or attempt to circumvent any methods employed by Pendo to control access to the components, features or functions of the Platform, or to prevent unauthorized use of the Platform; or (iv) use the Platform or the Documentation to develop a competing software product. The restrictions on resale in the Terms and Conditions do not apply with respect to OEM Partner’s distribution of the Platform as part of the Integrated Product hereunder.
(c) Trademarks. Each party grants the other party a limited, non-exclusive, non-transferable, worldwide license during the Term to use the trade names, trademarks, service marks, logos and other similar content (the “Trademarks”) of the other party in conjunction with the distribution of the Platform and its associated Documentation as part of the Integrated Product. Neither party will create in or represent that it has any right, title or interest in the marks of the other, except the license explicitly granted herein. Any use of Pendo’s trade name, trademark, service marks or logos not contemplated in this Addendum, or in association with any Pendo product or services other than the Platform is a breach of the Agreement.
2. Obligations of the Parties
(a) The Platform. During the Term Pendo will support (subject to OEM Partner’s obligations in Section 2(d)), host, maintain and update the Platform for use by Customers.
(b) Customer Agreements. OEM Partner shall only provide access to the Platform to Customers pursuant to an agreement between OEM Partner and Customer (of which Pendo is an intended third-party beneficiary) with rights and obligations appropriate for the scope of accessing and using the Platform, including appropriate data privacy and processing obligations which, at least, shall indicate Pendo is a subprocessor providing the Platform (“Customer Agreement(s)”). OEM Partner is solely responsible for the terms and conditions between OEM Partner and Customers governing Customer’s use of and access to the Platform . OEM Partner is responsible for all Customer billing and collection for its use of and access to the Platform.
(c) Documentation and Training. Pendo will provide OEM Partner with appropriate Documentation to enable the OEM Partner to perform its obligations hereunder, including marketing and sales support and materials. Additionally, Pendo will provide periodic training to OEM Partner’s sales and technical success personnel, which training OEM Partner will ensure its sales and technical success personal attend.
(d) Support. OEM Partner shall provide initial customer support for Customer requests and shall include initial triage of Customer’s reports of errors or defects in the Platform (“Tier 1 Support”). OEM Partner will provide Tier 1 Support in accordance with OEM Partner’s standard SLAs, or if OEM Partner does not have SLAs in place with Customer, in accordance with the SLAs agreed to in the Terms and Conditions, or if SLAs were not agreed to in the Terms and Conditions, then in accordance with the SLAs attached hereto as Attachment A (in which case “Pendo shall be replaced with “OEM Partner” in such SLA). If OEM Partner’s Tier 1 Support does not fully resolve Customer’s error or defect, OEM Partner will escalate Customer’s request to appropriate Pendo personnel for additional support.
(e) Sales Updates. The parties will participate in monthly sales pipeline calls where OEM Partner will update Pendo on Customer activity and developing pipeline and sales plans.
3. Term and Termination
(a) Term of Addendum. The initial term of this Addendum is three (3) years; thereafter, it will automatically renew for additional one (1) year terms (together with the initial term, the “Term”), unless terminated by either party as provided herein.
(b) Termination. Either party may terminate this Addendum (in whole or with respect to an applicable Order Form) upon written notice to the other party if such other party materially breaches any provision of this Addendum and fails to cure such breach within thirty (30) days following such notice thereof or immediately if OEM PArtners infringes upon or misappropriates Pendo’s intellectual property or pursuant to the receipt of a subpoena, court order, request by a law enforcement agency, or as otherwise required by law. Additionally, (i) either party may terminate this Addendum (in whole) at any time upon written notice to the other party if the term(s) of all Customer Agreements entered into between OEM Partners and Customer during the Term have expired, or (ii) upon written notice to the other party at least ninety (90) days prior to the anniversary of the Effective Date.
(c) Effect of Termination. Upon any expiration or termination of this Addendum, (i) OEM Partner’s right to market and distribute the Platform will terminate, and (ii) OEM Partner’s right to use Pendo’s Trademarks with respect to any marketing or promotional activity will terminate. Notwithstanding any termination or expiration of this Addendum and except as specified in the preceding sentence, the parties will continue to perform hereunder until the expiration or termination of all Customer Agreements entered into between OEM Partner and Customers during the Term.
(d) Survival. The provisions of Sections 2(b), 3(c) and(d), 4(b) and (c), 5, 6, 7 and 8 shall survive termination or expiration of this Addendum.
(a) Price. OEM Partner will charge Customers a dollar amount equivalent to at least ten percent (10%) of OEM Partner’s product license or access fees for the Platform or the alternative minimum price set forth on the Order Form between the parties (the “Platform Price”).
(b) Payment. OEM Partner will pay Pendo fifty percent (50%) of the Platform Price within thirty (30) days of the date of OEM Partner’s receipt of payment from Customer. OEM Partner will use commercially reasonable efforts to timely invoice and collect fees from Customers.
(c) Sales Commitments. OEM Partner will (i) pay commission to its sales personnel for distributions of the Platform and (ii) retire such sales personnel’s quota requirements for such distributions in accordance with OEM Partner’s standard practices for sales or distributions of its own products and services.
(d) Initial Payment. Within thirty (30) days of the Effective Date, OEM Partner shall remit to Pendo the upfront payment specified on the Order Form.
5. Feedback; Customer Data and Statistical Information
(a) Feedback. From time to time, OEM Partner or Customers may submit comments, questions, enhancement requests, suggestions, ideas, process descriptions or other information related to the Platform to Pendo (“Feedback”). OEM Partner grants Pendo the right to use and incorporate Feedback into the Platform and shall procure such rights from Customers.
(b) Customer Data. OEM Partner represents and warrants that it has all necessary power and authorization to grant to Pendo all rights and licenses granted under the Agreement with respect to any data, information or material that either OEM Partner or Customer provides or makes available in the course of using the Platform (“Customer Data”), including, without limitation, Feedback. OEM Partner is responsible for the procurement, accuracy, quality, and legality of Customer Data. OEM Partner shall be liable to Pendo for the acts and omissions of its Customers to the same extent that OEM Partner would itself be liable under the Agreement had it conducted such acts or omissions.
(a) By Pendo. Subject to Section 6(b) below, Pendo shall defend OEM Partner and its employees, officers, directors, and agents from and against all claims, actions, demands, and suits by third parties and pay all losses, liabilities, damages, costs, and expenses associated therewith (including reasonable attorneys’ fees) that are included in a final (non-appealable) judgment of a court of competent jurisdiction or in a settlement approved by Pendo arising from or in connection with any allegation that the Platform infringes the third party’s intellectual property rights. In the event of any such claim hereunder, Pendo will use commercially reasonable efforts to (i) procure for OEM Partner the right to continue to distribute the Platform (as set forth herein), (ii) provide a reasonable workaround solution, or (iii) replace or modify the Platform to make its use non-infringing. If alternatives (i)-(iii) are not, in Pendo’s discretion, commercially reasonable, Pendo may terminate this Addendum and/or applicable Order Form(s) upon written notice to OEM Partner, and OEM Partner may receive a pro rata refund of fees paid with respect to the Platform for the remainder of the term of affected Customer Agreements.
Notwithstanding anything to the contrary, Pendo shall not have any liability or obligations under this Section 9(a) if the alleged infringement or the claim is based upon or results from: (I) use of the Platform (A) in combination with any other programs, products or processes not provided by Pendo to OEM Partner (other than any OEM Partner product constituting part of an Integrated Product (as identified in an Order Form)), (B) other than as permitted under the Agreement, or (C) other than in accordance with the applicable Documentation; (II) any act or omission of any party other than Pendo; (III) Pendo’s compliance with designs, specifications or instructions provided by OEM Partner; (IV) use of any release of the Platform if the infringement would not have occurred or would have been significantly less likely through use of a more recent release or after notice by Pendo to discontinue use of the Platform; (V) OEM Partner’s claim or lawsuit against a third party or (VI) any third-party software or equipment that is used in connection with the Platform. The foregoing states the entire liability of Pendo, and OEM Partner’s exclusive remedy, under this Addendum with respect to any actual or alleged violation of intellectual property rights by any of the Platform or any part thereof or by their use or operation.
(b) By OEM Partner. OEM Partner shall indemnify, defend, and hold harmless Pendo and its employees, officers, directors, agents from and against all claims, actions, demands, and suits by third parties, and all losses, liabilities, damages, costs, and expenses associated therewith (including reasonable attorneys’ fees) arising from or in connection with third party demands or claims against Pendo relating to any of OEM Partner’s or its Customers’ actions in connection with this Addendum and/or the Customer Agreements.
(c) Procedures. The indemnified party will give the indemnifying party (i) reasonably prompt written notice of such claim, lawsuit or action; (ii) any information in the possession of the indemnified party related to such claim, lawsuit or action; (iii) reasonable assistance; and (iv) sole authority to settle or defend such claim, lawsuit or action. The indemnifying party will not enter into any settlement or plea agreement that requires the indemnified party to admit any liability or wrongdoing without the indemnified party’s prior written consent, which shall not be unreasonably withheld.
7. Disclaimer of Damages; Limitation of Liability.
(a) Disclaimer of Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY (NOR ANY OF ITS AGENTS, AFFILIATES, LICENSORS OR SUPPLIERS) BE LIABLE FOR (I) 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 AGREEMENT OR ANYTHING PROVIDED IN CONNECTION WITH THE AGREEMENT OR (II) 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 SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
(b) Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY’S (INCLUDING ITS AGENTS’, AFFILIATES’, LICENSORS’ AND SUPPLIERS’) TOTAL LIABILITY UNDER THIS ADDENDUM (INCLUDING ALL ORDER FORMS), WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, EXCEED, IN THE AGGREGATE, THE FEES PAID TO PENDO HEREUNDER IN THE TWELVE (12) MONTH PERIOD ENDING ON THE DATE OF THE FIRST EVENT GIVING RISE TO LIABILITY UNDER THIS ADDENDUM. THE FOREGOING LIMITATION IN THIS SECTION 7(b) SHALL NOT LIMIT EITHER PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 6 OF THIS ADDENDUM OR OEM PARTNER’S PAYMENT OBLIGATIONS PURSUANT TO THIS ADDENDUM.