last updated July 2021
This Pendo Software Services Agreement is entered into between Customer and Pendo as of the Effective Date. If you are agreeing to these Terms and Conditions, not as an individual, but on behalf of your company, a government, or another entity for which you are acting, then Customer shall mean your entity, and you represent and warrant that you have the authority to bind such entity to these Terms and Conditions. These Terms and Conditions, together with all Order Forms entered into between Customer and Pendo (or their respective Affiliates), constitute the “Agreement” between the parties.
Capitalized terms shall have the meaning set forth below or otherwise in the body of these Terms and Conditions.
(a) “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. Affiliates of either party may conduct business under these Terms and Conditions by signing an Order Form.
(b) “API” means a set of routines, protocols, and tools for building software applications that defines interactions between multiple software intermediaries.
(c) “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).
(d)“Customer” means the entity that is a party to these Terms and Conditions.
(e) “Customer Data” means any data, information or material that Customer provides or makes available in the course of using the Services.
(f) “Documentation” means the official Pendo documents and manuals for the Subscription Services as generally made accessible to Pendo’s customers.
(g) “Effective Date” means the earliest of (i) the date of the later signature of a party hereto, (ii) the date Customer accepts these Terms and Conditions (including by signing an Order Form) and (iii) the date Customer receives access to Services.
(h) “Event” means a record of a single end-user interaction with a software application (such as a page load, click or hover).
(i) “Order Form” means a Pendo ordering document used to purchase Services.
(j) “Pendo” means Pendo.io, Inc., a Delaware corporation.
(k) “Professional Services” means consulting services provided by Pendo outlined in the Pendo Professional Services Addendum, if applicable.
(l) “Services” means Professional Services, Subscription Services and other services (such as maintenance and support) offered by Pendo.
(m) “Software” means Pendo’s commercially available downloadable software (including all Updates) included with Subscription Services.
(n) “Subscription Services” means the online platform services (including all Updates) and Software that Pendo provides, including one or more Application Keys and endpoints.
(o) “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 of Pendo.
(p) “Terms and Conditions” means the terms and conditions set forth in Sections 1 through 11 of this Pendo Software Services Agreement, together with the terms and conditions in any attachment or addendum hereto.
(q) “Units” means the basis on which fees are established for Subscription Services.
(r) “Updates” means, as applicable, bug fixes, enhancements, upgrades and new releases or versions that are made generally available to Pendo customers.
(s) “User” means a Customer employee or independent contractor who has a business need to use the Subscription Services pursuant to the Agreement.
2. Access and Restrictions
(a) Access and Use of Subscription Services. Pendo grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable right to access and use the Subscription Services based on the number of Units specified in the applicable Order Form during the term of any such Subscription Services (as set forth in the applicable Order Form) for Customer’s internal business purposes (the “Permitted Purpose”) subject to the terms of the Agreement.
Only Customer’s Users may access and use the Services ordered by Customer hereunder. Customer is responsible for maintaining the security of Customer’s account, passwords (including but not limited to administrative and user passwords) and files and for use of Customer’s account by Customer or any other person or entity who accesses Customer’s account via or as a result of Customer, with or without Customer’s knowledge or consent (unless such unauthorized access was caused by Pendo), and if Customer becomes aware of any violation, Customer will immediately terminate the offending party’s access to the Services and notify Pendo. Customer shall be responsible to Pendo for its Users’ activity and any breach of the Agreement.
(b) No Charge Access. If Subscription Services are provided to Customer for evaluation, beta, release candidate or free purposes, as identified in an Order Form, 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 shall not be used for production use, and Customer’s access and use right shall terminate on the end date of the predetermined period set forth in the applicable Order Form 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 these Terms and Conditions shall apply to the Subscription Services provided for evaluation, beta, release candidate or free purposes.
(c) Restrictions. Except as expressly authorized in the Agreement, Customer shall not, and shall ensure that Users do not, directly or indirectly: (i) license, sublicense, rent, lease, sell, resell, loan, transfer, distribute, translate, or otherwise transfer rights to the Services; (ii) reverse engineer, decompile, or disassemble or otherwise obtain or attempt to create, derive, or obtain the source code of the Services; (iii) modify, translate, enhance or otherwise change the Services or prepare derivative works of the Services, including creation and distribution of add-ons or enhancements or incorporation into another product unless expressly agreed between the parties; (iv) copy, reproduce, republish, upload, post, or transmit the Services or any other materials provided in connection therewith; (v) remove, obscure, or alter any notice of copyright, trademark or other proprietary right appearing in or on any item included with the Services; (vi) circumvent or attempt to circumvent any methods employed by Pendo to control access to the components, features or functions of the Services or to prevent unauthorized use of the Services; or interfere with, impair, or disrupt the integrity or performance of the Services or any other party’s use of the Services; (vii) use or otherwise exploit the Services for any purpose, commercial or otherwise, other than the Permitted Purpose, including for purposes of benchmarking, competitive analysis or the development of a competing software product; or (viii) use the Services to violate third party rights or applicable laws or to store or transmit infringing, libelous, unlawful, or tortious material or store material in violation of third party rights or applicable laws.
3. Term and Termination
(a) Term. These Terms and Conditions will begin on the Effective Date and continue until terminated as set forth herein. Unless otherwise agreed, Subscription Services automatically renew for successive periods of twelve (12) months each, unless a party gives the other party written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term, or the applicable Order Form is sooner terminated as provided herein.
(b) Termination. Either party may terminate the Agreement (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 the Agreement and fails to cure such breach within thirty (30) days following such notice thereof (except that a breach of Section 7 is not capable of cure) or immediately if Customer 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. In addition, either party may terminate the Agreement (in whole) at any time upon written notice to the other party if the term(s) of all Services have expired.
(c) Effects of Termination and Survival. The expiration 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.
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 Customer Data prior to such expiration or termination and may request a copy of its Customer 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 Customer Data within thirty (30) days unless otherwise legally prohibited.
The provisions of Sections 2(a) (the last two sentences only), 2(b) (the last two sentences only), 2(c), 3(c), 5, 6 (other than Section 6(d)), 7 (to the extent set forth therein), 8(d), and 9-11 (except that the rights and obligations set forth in Section 9 shall survive only with respect to claims based on actions or inactions that occurred during the term of the Agreement, and such provision shall otherwise be of no force or effect) and any and all remedies for breach of the Agreement shall survive any termination or expiration of the Agreement.
4. Obligations of the Parties
(a) Compliance with Laws. Both parties shall 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.
(b) Customer Obligations. Customer agrees and warrants that it (i) will install the latest version of the Software to access and use the Subscription Services; (ii) is legally able to provide Customer Data to Pendo and its Affiliates, including obtaining appropriate consents for any processing by Pendo; (iii) will establish a constant internet connection and electrical supply for the use of the Subscription Services; (iv) will ensure that the Services are used only with public domain or properly licensed third party materials; and (v) will keep its registration information, billing information, passwords and technical data accurate, complete, secure and current during the term of the Agreement.
(a) Payment. Customer will pay Pendo in accordance with the applicable Order Form(s). Fees for the Services shall be as set forth in an Order Form and do not include Taxes or service provider fees (such as payment processor or vendor management).
(b) 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 or Application Keys Customer orders (or a combination thereof). If, during the term of an Order Form, Customer’s usage exceeds the quantity of Units in the Order Form, Customer’s fees will increase based on the applicable price per Unit. 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. In addition, if Customer exceeds five billion Events per Application Key per month, Pendo and Customer will assess additional fees for such excess usage.
(c) Taxes. All fees are exclusive of Taxes, and Customer shall pay or reimburse Pendo for all Taxes arising out of the Agreement. If Customer is required to withhold or deduct any Taxes from the payment of any fees, Customer will increase the amount payable to Pendo by the amount of such Taxes so that Pendo receives the full amount of all fees and expenses. If Pendo has the legal obligation to pay or collect Taxes for which Customer is responsible, the appropriate amount shall be invoiced to and paid by the Customer, unless Customer provides Pendo with a valid tax exemption certificate authorized by the appropriate taxing authority. Pendo’s failure to initially invoice Customer for any applicable Taxes does not relieve Customer from responsibility for such Taxes under the Agreement.
6. Ownership; Feedback; Customer Data; Protection
(a) Ownership. Pendo (and/or its licensors) is the sole and exclusive owner of all rights, title and interest in and to the Services and Pendo’s proprietary property (including intellectual property rights) and reserves all rights, title and interest in and to the Services not expressly granted under the Agreement. No ownership right is conveyed to Customer in the Services or Pendo’s proprietary property, irrespective of the use of terms such as “purchase” or “sale” in any Order Form.
(b) 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.
(c) 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. Customer will be solely responsible for the procurement, accuracy, quality, and content of Customer Data.
(d) Protection. During the term of any Services ordered hereunder, each party shall comply with its respective obligations under applicable data protection laws, and each party shall 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 shall 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.
(a) 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 (including pricing), business and marketing plans, technology and technical information, product plans and designs, and business processes. “Confidential Information” does not include any information that (i) is or becomes publicly available without breach by the Receiving Party under the Agreement, (ii) at the time of disclosure was known to the Receiving Party without obligation of confidentiality, (iii) is received by the Receiving Party from a third party not under an obligation of confidentiality, or (iv) was independently developed by the Receiving Party without use of or reference to Confidential Information of the Disclosing Party.
(b) 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. These obligations will continue for a period of two (2) years following initial disclosure of the particular Confidential Information (except for any Confidential Information constituting a trade secret under applicable law (as confirmed in good faith by counsel to the disclosing party), which shall be subject to these obligations for so long as it qualifies as a trade secret).
(c) 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.
8. Limited Warranty; Disclaimer
(a) Limited Warranty. Subject to Section 8(b), Pendo warrants to Customer that during the term of such Services (the “Warranty Period”) (i) the Subscription Services will not deviate in a material adverse manner from the Documentation for such Subscription Services then in effect; (ii) Pendo will not inject any software traps, viruses, worms, trap doors, malicious code, disabling code, or other means or functions designed to damage or corrupt the Subscription Services or otherwise damage or destroy data or other property and (iii) the Services will be performed in a professional and workmanlike manner by qualified personnel.
(b) Exceptions. The limited warranty set forth in Section 8(a) shall not apply to problems arising out of or relating to (i) Customer’s or its representatives’ modification of or damage to the Subscription Services unless such modification was made pursuant to the Documentation; (ii) any unauthorized third-party software or hardware that are operated with or incorporated into the Subscription Services by Customer; (iii) negligence, abuse, misapplication or misuse of the Services, including any use of the Subscription Services other than as specified in the Documentation; (iv) Customer’s failure to comply with any minimum system requirements specified in the Documentation; or (v) a deficiency in Customer’s systems or network used to access the Subscription Services.
(c) Remedial Efforts. If Pendo breaches any of the warranties set forth in Section 8(a)(i), Pendo may, at its option and expense, take any of the following steps to remedy such breach (i) repair the Subscription Services or (ii) 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 warranty set forth in Section 8(a) shall only apply if Customer has met its payment obligations pursuant to Section 4 and notifies Pendo in writing of the warranty breach before the expiration of the Warranty Period. For the avoidance of doubt, if payment for the Services is not yet due or invoices are being disputed in good faith, then Customer will not be considered to have unmet payment obligations.
(d) Disclaimer. EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 8(A), 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.
(a) By Pendo. Subject to Section 9(b) below, Pendo shall defend Customer 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 Subscription Services infringe 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 Customer the right to continue to use the Subscription Services, (ii) provide a reasonable workaround solution, or (iii) replace or modify the Subscription Services to make their use non-infringing. If alternatives (i)-(iii) are not, in Pendo’s discretion, commercially reasonable, Pendo may terminate the Agreement or applicable Order Form upon written notice to Customer, and Customer may receive a pro rata refund for the remainder of the term for the affected Services.
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 Subscription Services (A) in combination with any other programs, products or processes not provided by Pendo to Customer, (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 Customer; (IV) 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; (V) Customer’s claim or lawsuit against a third party or (VI) any third-party software or equipment that is used in connection with 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.
(b) Indemnification procedures. In the event of an indemnifiable claim under Section 9(a), Customer must (i) provide prompt written notice of (and information in its possession with respect to, including a reasonable estimate of the amount of damages involved in) the claim to Pendo (but any delay by Customer in giving such notice shall not excuse Pendo’s obligations under Section 9(a) except to the extent, if any, that Pendo is materially prejudiced by such delay); (ii) 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 shall not be unreasonably withheld, conditioned or delayed) and (iii) 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.
10. Disclaimer of Damages; Limitation of Liability
(a) Disclaimer of Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL PENDO (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 USE OF THE SERVICES 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 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.
(b) 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 (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 THE AGREEMENT.
11. Other Provisions
(a) Export. 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.
(b) 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.
(c) 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 shall 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.
(d) 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 shall be unimpaired, and the invalid term or provisions shall be replaced by such valid term or provisions as comes closest to the intention underlying the invalid term or provision.
(e) Notice. Any notice or other communications required or permitted in the Agreement shall be in English and in writing and shall be deemed to have been duly given to a party (i) upon receipt, if delivered by hand or sent by nationally recognized overnight delivery service, (ii) 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 (iii) 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):
150 Fayetteville Street, Suite 1400
Raleigh, NC 27601
Attn: General Counsel
Customer Contact’s address set forth on the Order Form.
(f) Integration. The Agreement (consisting of all Order Forms and these Terms and Conditions) 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.
(g) Amendments. No amendment or modification or waiver of any provision of the Agreement shall be effective unless the same shall 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.
(h) 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 shall 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.
(i) Force Majeure. Neither party shall 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.
(j) 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 (i) 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 (ii) reasonably sharing relevant, non-privileged documents, books and records and other materials, as reasonably requested, in connection with the dispute.