TERMS OF USE

Last Updated.

February 12, 2018

Acceptance of Terms.

The following terms and conditions govern all use of the website located at https://www.pendo.io/ (the Website), including all of the materials, documents, text, images, graphics, animation, videos and other information and content included in or available at the Website (Content). The Website, Content and any services provided at the Website are collectively referred to as the Service. The Service is owned and operated by Pendo.io, Inc. (Pendo).

The Service is offered and provided subject to acceptance of all of the terms and conditions contained herein (Terms of Use). The Terms of Use shall be deemed to include all other operating rules, conditions, policies and procedures that are referred to herein or that may otherwise be published at the Website by Pendo from time to time (collectively, Policies), including without limitation, the Privacy Policy.

The Service is available only to individuals who are at least 18 years old, who are acting for themselves or in their capacity as an employee or representative of a business entity or other organization (in which case you represent and warrant that you are authorized to agree to the Terms of Use on behalf of yourself and such entity or organization). Pendo may refuse to offer the Service to any person or entity and may change its eligibility criteria, at any time, in its sole discretion.

IF YOU DO NOT AGREE TO ALL OF THE TERMS OF USE, OR IF YOU ARE NOT ELIGIBLE OR AUTHORIZED TO DO SO, THEN DO NOT REGISTER FOR, ACCESS OR USE THE SERVICE. COMPLETING ANY REGISTRATION PROCESS OR OTHERWISE ACCESSING OR USING ANY PART OF THE SERVICE WILL CONSTITUTE ACCEPTANCE OF, AND CREATE A LEGALLY ENFORCEABLE CONTRACT UNDER WHICH YOU AGREE TO BE BOUND BY, ALL OF THE TERMS OF USE, WITHOUT MODIFICATION.

Not Commercial Data Services.

For clarity, the Content and Service provided at the Website do not include access to or use of Pendo’s commercial data services, which are only made available pursuant to a separate written agreement executed by the customer and Pendo (a Commercial Contract). In the event of any conflict between these Terms of Use and a Commercial Contract, the terms and conditions of the Commercial Contract shall control.

Changes.

Pendo reserves the right, at its sole discretion, to modify or replace any of the Terms of Use (including any Policy) at any time. It is your responsibility to check the Terms of Use periodically for changes. Your continued use of the Service following the posting of any changes to the Terms of Use constitutes acceptance of those changes. The Terms of Use (as it applies to you) may not otherwise be amended except by written instrument executed by you and Pendo.

Registration.

From time to time, at its sole discretion, Pendo may make all or any part of the Service available only to registered users (such as, for example, to apply for, subscribe or gain access to various information services or employment opportunities). You may elect to register or not, at your discretion. The registration process may require you to provide your name, company name, address, telephone number, email address and certain additional personal data or other information (such as, for example, your preferred contact method and businesses that are of interest to you).

Privacy.

Pendo’s current privacy policy is available at https://www.pendo.io/privacypolicy/ (the Privacy Policy), which is incorporated herein by reference. Please review the Privacy Policy to learn about Pendo’s information collection, usage and disclosure practices with respect to information collected by Pendo through the Service.

Informational Purposes Only.

All Content is provided for informational purposes only, and any other use of the Content (or other aspect of the Service) is expressly prohibited. The Service is not an offer to sell, or a solicitation from any person of an offer to buy, any securities or other form of investment. You acknowledge that the Service does not provide recommendations or advice of any kind (including without limitation, any investment, accounting, tax or legal advice). Pendo cannot monitor or control how you may interpret the Content or your resulting actions, and you hereby release Pendo from all liability related to your having acquired or not acquired Content through the Service.

Pendo has no obligation to monitor the Service or any use thereof.

Rules and Conduct.

As conditions of your use: You promise not to use the Service for any purpose that is unlawful or prohibited by the Terms of Use, or any other purpose not reasonably intended by Pendo; you agree to abide by all applicable local, state, national and international laws and regulations applicable to your use of the Service; and you agree not to disclose or provide Pendo with any confidential or proprietary information that you desire or are required to keep secret.

By way of example and not limitation, you agree not to take any action, or submit, upload or otherwise distribute any content or information, that:

1. is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, profane or which otherwise violates the Terms of Use;

2. infringes or violates any trademark, trade secret, copyright or other intellectual property or proprietary right (including rights of publicity or privacy);

3. imposes an unreasonable or disproportionately large load on Pendo’s computing, storage or communications infrastructure, or attempts to gain unauthorized access to the Service, other accounts, computer systems or networks connected to the Service, through password mining or otherwise;

4. contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data or other information of Pendo or any third party;

5. harvests, scrapes or collects any information from the Website; or

6. impersonates any person or entity, including any employee or representative of Pendo.

Third Party Websites.

The Service may permit you to link to other websites on the Internet, and other websites may contain links to the Website. These other websites are not under Pendo’s control, and you acknowledge that Pendo is not responsible for the accuracy, legality, appropriateness or any other aspect of the content or function of such websites.

Proprietary Rights.

You agree that the Website, Content and all other aspects of the Service are protected by copyrights, trademarks, service marks, trade secrets and/or other proprietary rights and laws. Unless and only to the extent expressly authorized by Pendo in writing, you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from the Service. However, unless the Website blocks you from doing so, you may print or download one copy of the Content for your internal records; provided, that you retain all copyright and other proprietary notices contained therein. Systematic retrieval of data or other Content to create or compile, directly or indirectly, a collection, database or directory without written permission from Pendo is prohibited.

Except as expressly specified in the Terms of Use, no other license is granted (by implication, estoppel or otherwise), no other use is permitted and Pendo (and its licensors) shall own and retain all rights, title and interests in and to the Website, Content and all other aspects of the Service.

Submissions and Feedback.

If you submit, upload or otherwise disclose or distribute information, data or other content of any kind (including without limitation, any feedback related to Pendo’s business) at the Website or otherwise through the Service, then you hereby:

1. grant and agree to grant to Pendo, its affiliates and their successors and assigns a perpetual, irrevocable, non-exclusive, royalty-free right and license (with right to sublicense) to use, reproduce, display, perform, adapt, modify, distribute, make derivative works of and otherwise exploit such content in any form and for any purpose, including without limitation, any concepts, ideas or know-how embodied therein;

2. represent and warrant to Pendo that you own or otherwise control all rights to such content and that disclosure and use of such content by Pendo (including without limitation, publishing content at the Website) will not infringe or violate the rights of any third party; and

3. agree that such content will not be treated confidentially by Pendo.

Termination.

Pendo may remove any Content or disable the Service (or terminate your access to all or any part of the Service) at any time, with or without cause, with or without notice, effective immediately. You may discontinue using the Service at any time. Upon any termination or discontinuance, you will immediately cease using the Website, Content and other aspects of the Service.

No Warranties.

THE WEBSITE, CONTENT AND OTHER ASPECTS OF THE SERVICE ARE PROVIDED "AS IS" AND "AS AVAILABLE," WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. NEITHER PENDO NOR ITS AFFILIATES REPRESENT OR WARRANT THAT: (A) THE SERVICE WILL BE TIMELY, ACCURATE, COMPLETE, RELIABLE OR CORRECT; (B) THE SERVICE WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (C) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (D) THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (E) THE RESULTS OF USING THE SERVICE WILL MEET YOUR REQUIREMENTS. YOUR USE OF THE SERVICE IS VOLUNTARY AND SOLELY AT YOUR OWN RISK.

Limitation of Liability.

IN NO EVENT SHALL PENDO OR ITS AFFILIATES BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) MATTER BEYOND ITS REASONABLE CONTROL, (B) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (C) INVESTMENT LOSSES OR INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL), OR (D) DAMAGES, IN THE AGGREGATE, IN EXCESS OF US$100, EVEN IF PENDO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.

SOME STATES AND OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.

Indemnification.

You agree to defend, indemnify and hold harmless Pendo, its limited partners and portfolio companies, and its and their affiliates, officers, directors, employees and representatives, from all liabilities, claims, and expenses, including attorneys’ fees, that arise from your use or misuse of the Service. Pendo reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with Pendo in asserting any available defenses.

International Use.

You expressly consent to the transmission, collection, storage, processing and use of your data from, to and within the United States, in addition to the country where you are located (if not the United States). Pendo makes no representation that the Service is accessible, appropriate or legally available for use in locations outside the United States, and accessing and using the Service (including with regard to the provision, collection or processing of data) is prohibited from territories where doing so would be illegal. If you access or use the Service from other locations, then you do so at your own initiative and risk and are solely responsible for compliance with local laws.

Dispute Resolution.

A printed version of the Terms of Use and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to the Service or Terms of Use (including any Policy) to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You and Pendo agree that any claim or cause of action arising out of or related to the Service must be commenced within 1 year after the claim or cause of action arose. Otherwise, such claim or cause of action is permanently barred.

The Terms of Use shall be governed by and construed in accordance with the laws of Delaware, USA, excluding its conflicts of law rules. In the event of any conflict between US and foreign laws, regulations and rules, US laws, regulations and rules shall govern.

Except that either party may seek an injunction or other equitable relief from any court of competent jurisdiction, all disputes between the parties arising out of or in relation to or in connection with the Service or Terms of Use shall be settled by binding arbitration in accordance with the JAMS commercial arbitration rules and procedures then in force, by one neutral arbitrator appointed in accordance with the rules. The arbitration shall take place in Dover, Delaware, USA. The proceedings shall be in English, all evidence shall be in English (or translated into English) and the governing law shall be as set forth herein. The arbitrator’s decision shall be in writing and shall comply with all terms and conditions in the applicable version of the Terms of Use. The decision and award rendered shall be final and binding on both parties. The parties acknowledge and agree that the Terms of Use and any award rendered pursuant hereto shall be governed by the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Judgment on the award may be entered in any court of competent jurisdiction.

ANY ARBITRATION UNDER THE TERMS OF USE WILL TAKE PLACE ONLY ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED. YOU UNDERSTAND AND AGREE THAT BY ENTERING INTO THE TERMS OF USE OR USING THE SERVICE, YOU AND PENDO ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY AND TO PARTICIPATE IN A CLASS ACTION.

Use of the Service is not authorized in any jurisdiction that does not give effect to all provisions of the Terms of Use, including without limitation, this section.

Integration and Severability.

The Terms of Use are the entire agreement, and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic), between you and Pendo with respect to the Service; provided, nothing in the Terms of Use is intended to amend or supersede any rights or obligations of Pendo pursuant to any fiduciary obligation. If any provision of the Terms of Use is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Terms of Use will otherwise remain in full force and effect and enforceable.

Miscellaneous.

The Terms of Use and access to the Service contemplated hereunder are personal to you, and are not assignable, transferable or sublicensable by you except with Pendo’s prior written consent. Pendo may assign, transfer or delegate any of its rights or obligations hereunder without your consent. All waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment relationship is created hereunder and neither party has any authority of any kind to bind the other in any respect. The failure of either you or Pendo to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. All notices hereunder will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or email; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service.

Copyright and Trademark Notices.

Unless otherwise indicated, all Content and the Terms of Use are Copyright © 2018 Pendo.io, Inc. All rights reserved.

Pendo.io® is the registered trademark of Pendo.io, Inc. The names and logos of other companies, products or services mentioned at the Website or in any Content are the trademarks or service marks of their respective owners.

Contact.

If you have questions regarding the Terms of Use, you may contact Pendo at the following address:

Pendo.io, Inc. Attn: CFO 150 Fayetteville Street, Suite 1400 Raleigh, NC 27601

Tel: 919.275.5477

Email: [email protected]