last updated August 2022
This Pendo Software Services Agreement is entered into between Customer and Pendo as of the Effective Date. If you are agreeing to this SSA, you represent and warrant that you have the authority to bind Customer to this SSA. Capitalized terms will have the meanings set forth below.
“Agreement” means, collectively, this SSA and the Order Form(s).
“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 this SSA or any Customer Affiliate that is party to an Order Form that incorporates this SSA.
“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.
“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) of the later signature of a party hereto, (ii) Customer first clicks “I agree” (or similar button or checkbox), and (iii) Customer accepts this SSA (including by signing an Order Form).
“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).
“Order Form” means a Pendo ordering document or online purchasing form used to purchase Services.
“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.
“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.
“SSA” means this Pendo Software Services Agreement, together with any addendum hereto.
“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 or Customer Affiliate employee or independent contractor who has a business need to use the Subscription Services pursuant to the Agreement.
2. Access and Restrictions
2.2 Support. During the term of the applicable Order Form, Pendo will provide Customer with Services support, as follows: Customer can submit support inquiries via the Pendo website 24 hours per day. Pendo standard support hours are 07:00 to 19:00 Eastern Time Monday through Friday for technical information, technical advice and technical consultation regarding Customer’s use of the Services.
2.3 Customer Obligations. Customer is responsible for, and will maintain, the security, completeness and accuracy of Customer’s registration information, account, passwords, and billing information. 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 or use 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 Pendo. Customer is responsible to Pendo for its Users’ activity and any breach of the Agreement.
2.4 No Charge Access. If Subscription Services are provided to Customer for evaluation, beta, release candidate or free purposes, as identified by Pendo, Pendo hereby grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable right to access and use evaluation, beta, or release candidate features and functionality or free versions of the Subscription Services pursuant to the terms of the Agreement. Subscription Services provided for evaluation, beta, or release candidate purposes will not be used for production use, and Customer’s access and use right will terminate on the end date of the predetermined period set forth in the Agreement or immediately upon notice from Pendo in its sole discretion. Notwithstanding any other provision contained herein, the Subscription Services and Documentation provided pursuant to this Section 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 this SSA will apply to the Subscription Services provided for evaluation, beta, release candidate or free purposes.
3. Term and Termination
3.2 Termination. Either party may terminate the Agreement (in whole or with respect to an applicable Order Form) upon written notice to the other party: (a) if such other party materially breaches any provision of the Agreement and, if capable of cure, fails to cure such breach within thirty (30) days following such written notice thereof; (b) if such other party enters into compulsory or voluntary liquidation, or ceases to carry on business, or takes or suffers any similar action which the other party reasonably believes means that it may be unable to pay its debts; or (c) immediately upon written notice to Customer if Customer infringes upon or misappropriates Pendo’s intellectual property.
Either party may terminate the Agreement (in whole) at any time immediately upon written notice to the other party if all term(s) of all Services have expired. If no Services are contracted for, or being delivered by, Pendo for a period of one (1)-year pursuant to this Agreement, then this Agreement (in whole) will terminate automatically at such one (1)-year mark.
3.3 Effects of Termination. The expiration or termination of an individual Order Form or any Services will not impact any other Order Form or Services or the remainder of the Agreement. If the Agreement is terminated in whole, the Agreement and all corresponding Order Forms will terminate. Customer will pay for all Services up to the effective date of termination.
3.4 Access to End-User Data Upon Expiry or Termination. Upon expiration or termination of the Agreement (in whole or with respect to any Order Form), Pendo will disable the applicable 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 2.3 (the last two sentences only), 3.3, 3.4, 3.5, 4, 5, 6, 7.4, 8, 9, 10 (except that the rights and obligations set forth in Section 8 will survive only with respect to claims based on actions or inactions that occurred during the term of the Agreement, and such provision will otherwise be of no force or effect) and any and all remedies for breach of the Agreement will survive any termination or expiration of the Agreement.
4.2 Scope of Usage. Fees are established by counting the Units associated with the ordered Services. For instance, fees for Services may be established based on the number of unique users of Customer’s software platform(s) over a thirty (30)-day period (i.e., MAUs) or the number of seats Customer orders (or a combination thereof). If, during the term of Services, Customer’s usage exceeds the quantity of Units in the Order Form, Customer’s fees will increase based on the applicable Unit pricing. Unless otherwise agreed between the parties, the additional fees will commence on the date Customer first exceeded its quantity of Units and be prorated for the remainder of the applicable term.
4.3 Taxes. All fees are exclusive of Taxes, and Customer will pay or reimburse Pendo for all Taxes arising out of the Agreement. Customer will pay all fees to Pendo without any deduction for withheld taxes or otherwise. If Pendo has the legal obligation to pay or collect Taxes for which Customer is responsible, the appropriate amount will be invoiced to and paid by the Customer, unless Customer provides Pendo with a valid tax exemption certificate authorized by the appropriate taxing authority.
5. Ownership; Feedback; Customer Data; Protection
5.2 Feedback. From time to time, Customer or its Users may submit to Pendo comments, questions, enhancement requests, suggestions, ideas, process descriptions or other information related to the Services (“Feedback”). Customer 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) 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 party will comply with its respective obligations under applicable data protection laws, and each party 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, the parties will process Personal Data in accordance with Pendo’s Data Processing Addendum, which is incorporated by reference.
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. Limited Warranty; Disclaimer
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 (d) a deficiency in Customer’s systems or network used to access the Subscription Services.
7.3 Remedial Efforts. If Pendo breaches any of the warranties set forth in Section 7.1, Pendo may, at its option and expense, take any of the following steps to remedy such breach: (a) repair or re-perform the applicable Services; or (b) replace the Subscription Services with functionally equivalent products, provided that if Pendo cannot remedy such breach in a commercially reasonable manner, Customer may terminate, as its sole and exclusive remedy and Pendo’s entire liability, the affected Services and receive a pro rata refund of the fees paid by Customer for the Services for the remaining portion of the unused term. The limited warranties set forth in Section 7.1 will only apply if Customer notifies Pendo in writing of the warranty breach during the term of the applicable Services.
7.4 Disclaimer. EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 7.1, PENDO MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AND THE PRODUCTS AND SERVICES ARE PROVIDED “AS IS.” PENDO HEREBY DISCLAIMS 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. PENDO DOES NOT WARRANT THAT OPERATION OF OR USE OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE. CUSTOMER ACKNOWLEDGES THAT PENDO DOES NOT CONTROL 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. PENDO IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
8.2 Exclusions. Notwithstanding anything to the contrary, Pendo will not have any liability or obligations under Section 8.1 if the alleged infringement or the claim is based upon or results from: (a) use of the Subscription Services: (i) in combination with any other data, materials, programs, products or processes not provided by Pendo to Customer; or (ii) other than as permitted under the Agreement; (b) Pendo’s compliance with designs, specifications or instructions specified by Customer; or (c) use of any release of the Subscription Services 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 Subscription Services. The foregoing states the entire liability of Pendo, and Customer’s exclusive remedy, with respect to any actual or alleged violation of intellectual property rights by any of the Subscription Services or any part thereof or by their use or operation.
8.3 Indemnification Procedures. In the event of an indemnifiable claim under Section 8.1, Customer must: (a) provide prompt written notice to Pendo of the claim and information in its possession with respect thereto, including a reasonable estimate of the amount of damages involved in the claim (but any delay by Customer in giving such notice will not excuse Pendo’s obligations under Section 8.1 except to the extent, if any, that Pendo is materially prejudiced by such delay); (b) give Pendo sole authority to defend and settle the claim (except that Pendo may not enter any settlement that requires Customer to admit any liability without Customer’s prior written consent, which will not be unreasonably withheld, conditioned or delayed); and (c) provide reasonable assistance to Pendo (at Pendo’s cost). If any indemnifiable claim includes allegations regarding non-indemnifiable matters, Pendo will only be responsible for the share of losses, liabilities, damages, costs and expenses (as set forth above) relating to the indemnifiable matter.
9. Disclaimer of Damages; Limitation of Liability
9.2 Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL PENDO’S (INCLUDING ITS 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 PAID TO PENDO HEREUNDER IN 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 9 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES 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.
10. Other Provisions
10.2 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.
10.3 Assignment. Neither party may assign, delegate, or otherwise transfer the Agreement or any of its rights, duties or and obligations hereunder without the prior written consent of the other party; provided, however, in the event of the sale or transfer of substantially all of its assets, or a sale, merger or change of control, either party may assign any or all rights and obligations contained herein without consent. Both parties will use commercially reasonable efforts to provide notice to the relevant party upon 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.
10.4 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.
10.5 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):
301 Hillsborough Street, Suite 1900
Raleigh, NC 27603
Customer contact’s address set forth on the applicable Order Form.
10.6 Integration. 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, including any purchase order or other order-related document (other than an Order Form), 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.
10.7 Amendments. No amendment or modification or waiver of any provision of the Agreement will be effective unless the same will be in writing and, in the case of an amendment or modification, signed by both parties or, in the case of a waiver, signed by the party against which the waiver is sought to be enforced.
10.8 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.
10.9 Force Majeure. Neither party will be liable for any failure to perform, or delay in performing, an obligation under the Agreement (other than Customer’s payment obligations) or loss resulting from a cause over which it does not have direct control.
10.10 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.
10.11 Counterparts. This SSA may be executed by electronic signature and in counterparts, each of which will be an original and all of which, taken together, will constitute one and the same instrument.