Mind the Product Professional Services Agreement

“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.

“Agreement” means, collectively, this PSA and the Order Form(s).

“Customer” means the entity that is a party to this PSA or any Customer Affiliate that is party to an Order Form that incorporates this PSA.

“Effective Date” means the earliest of the date: (i) of the later signature of a party hereto, and (iii) Customer accepts this PSA (including by signing an Order Form).

“MTP” means Pendo.io, Inc., a Delaware corporation dba Mind the Product on behalf of itself and its Affiliates.

“Order Form” means an MTP ordering document used to purchase Services.

Subject to the terms of this PSA, MTP will perform the services specified in an Order Form (the “Professional Services”) agreed to and executed by the parties.

Customer will pay MTP in accordance with the terms and conditions set forth in the applicable Order Form(s). Fees are exclusive of any sales, use, value added, excise, or other similar taxes that may be imposed by federal, state, or local governments, which are Customer’s responsibility. MTP does not accept any terms and conditions attached or otherwise associated with a purchase order delivered by Customer to MTP.

4.1. Term. This PSA will begin on the Effective Date and continue until termination or expiration as set forth herein.

4.2. Expiration and Termination.

4.3. Effects of Expiration and Termination. The expiration or termination of an individual Order Form or any Professional Services will not impact any other Order Form or any Professional Services or the remainder of the Agreement. Customer will pay for all Professional Services up to the effective date of expiration or termination. The provisions of Sections 3, 4.3, 5, 6, 7.2, 9, 10.4, 11 (except that the rights and obligations set forth in Section 11 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), 12 and 13, and any and all remedies for breach of the Agreement, will survive any termination or expiration of the Agreement.

5.1. 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 (including pricing), business and marketing plans, intellectual property, 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 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.

5.2. Obligations. The Receiving Party will use at least 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.

5.3 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.

Personal Data, defined as any information relating to an identified or identifiable natural person, will be considered Confidential Information and afforded all of the protections set forth in this PSA. In addition to and without limiting the terms generally applicable to Confidential Information, the parties agree that each will process, apply, view and use Personal Data only to the extent necessary to perform under the Agreement. Neither party will transfer or otherwise allow the use of Personal Data of the other party unless expressly instructed or authorized by the other party. Both parties will comply with applicable laws and best practices relating to data privacy and data security.

7.1. Customer will (a) respond promptly to any request by MTP to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for MTP to perform the Professional Services in accordance with the requirements of this Agreement, and (b) comply with MTP’s Code of Conduct available here: https://www.mindtheproduct.com/code-of-conduct/.

7.2. From time to time, Customer or its personnel may submit to MTP comments, questions, enhancement requests, suggestions, ideas, process descriptions or other information related to the Professional Services (“Feedback”). Customer hereby grants to MTP a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate the Feedback for any purpose without restriction, attribution or payment to Customer.

MTP may use third parties (“Subcontractors”) to perform the Professional Services and will remain fully liable to Customer for any work performed by such Subcontractor(s) in the same manner and to the same extent as if the work had been performed directly by MTP and its employees.

MTP (and/or its licensors) is the sole and exclusive owner of all rights, title and interest in and to the Professional Services and the MTP-provided materials (the “Training Materials”) (including intellectual property rights) and reserves all rights, title and interest in and to the Professional Services and Training Materials not expressly granted under this Agreement. Customer acknowledges and agrees that no ownership or intellectual property rights in the Training Materials will transfer to Customer under this Agreement. Except as expressly authorized in writing by MTP, Customer has no right to reproduce, store in any retrieval system or otherwise transmit in any form or by any means, the Training Materials. Without prejudice to the generality, Customer will not, and will inform personnel participating in the Professional Services (each an “Attendee”) that they may not: (a) share the Training Materials with any individual who was not an Attendee; (b) remove any copyright or trademark notice on the Training Materials; (c) share the Training Materials outside of its business; (d) use the Training Materials to provide training services to third parties; (e) reproduce, modify, transfer, exploit, distribute, dispose of or otherwise use the Training Materials; and/or (f) license, sell, rent, lease, transfer, assign (except as permitted herein) or otherwise commercially exploit the rights to the Training Materials granted herein. MTP hereby grants a non-exclusive and revocable right to use the Training Materials within the Customer’s organization only, for its internal business purposes and in accordance with the terms of this Agreement.

10.1. Warranty. MTP warrants to Customer that the Professional Services will be performed in accordance with industry standards and will comply in all material respects with the specifications and requirements set forth in the applicable Order Form.

10.2. Exceptions. The limited warranty set forth in Section 10.1 will not apply to Customer’s failure to comply with any minimum system requirements specified in the Agreement or any deficiency in Customer’s systems or network used to access the Professional Services.

10.3. Remedial Efforts. If MTP breaches any of the warranties set forth in Section 10.1, MTP may, at its option and expense, take any of the following steps to remedy such breach: (a) repair the Professional Services or (b) replace the Professional Services with functionally equivalent products; provided that if MTP cannot remedy such breach in a commercially reasonable manner, Customer may terminate, as its sole and exclusive remedy and MTP’s entire liability, the affected Professional Services and receive a pro rata refund of the fees paid by Customer for the Professional Services for the remaining portion of the unused term.

10.4. Disclaimer. EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 10.1, MTP MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AND THE PROFESSIONAL SERVICES ARE PROVIDED “AS IS.” MTP 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.

11.1. By MTP. Subject to Section 11.2 below, MTP will defend and indemnify 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 MTP to the extent arising from any allegation that the Professional Services infringe the third party’s intellectual property rights. In the event of any such claim hereunder, MTP will use commercially reasonable efforts to: (a) procure for Customer the right to continue to use the Professional Services, or (b) replace or modify the Professional Services to make their use non-infringing. If alternatives (a)-(b) are not, in MTP’s discretion, commercially reasonable, MTP 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 Professional Services.

11.2. Notwithstanding anything to the contrary, MTP will not have any liability or obligations under Section 11.1 if the alleged infringement or the claim is based upon or results from use of the Professional Services or Training Materials other than as permitted under this Agreement. The foregoing states the entire liability of MTP, and Customer’s exclusive remedy, with respect to any actual or alleged violation of intellectual property rights by any of the Professional Services or any part thereof.

11.3. Indemnification Procedures. In the event of an indemnifiable claim under Section 11.1, Customer must: (a) provide prompt written notice to MTP of the claim and information in its possession with respect to, 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 MTP’s obligations under Section 11.1 except to the extent, if any, that MTP is materially prejudiced by such delay); (b) give MTP sole authority to defend and settle the claim (except that MTP 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 MTP (at MTP’s cost). If any indemnifiable claim includes allegations regarding non-indemnifiable matters, MTP will only be responsible for the share of losses, liabilities, damages, costs and expenses (as set forth above) relating to the indemnifiable matter.

12.1 Disclaimer of Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL MTP (NOR ANY OF ITS 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 PROFESSIONAL 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 MTP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

12.2. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL MTP’S (INCLUDING ITS AGENTS’, AFFILIATES’, LICENSORS’ AND SUPPLIERS’) TOTAL LIABILITY FOR PROFESSIONAL SERVICES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, EXCEED, IN THE AGGREGATE, THE FEES PAID WITH RESPECT TO THE PARTICULAR PROFESSIONAL SERVICES GIVING RISE TO LIABILITY UNDER THE MOST APPLICABLE ORDERING DOCUMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT THAT GAVE RISE TO SUCH LIABILITY.

13.1. Compliance with Laws. Both parties 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.

13.2. Independent Contractors. MTP 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.

13.3. 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.

13.4. 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.

13.5. 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):

To MTP:

Pendo.io, Inc. dba Mind the Product
301 Hillsborough Street, Suite 1900
Raleigh, NC 27603
Attn: Legal

To Customer:

Customer contact’s address set forth on the applicable Order Form.

13.6. 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. In the event of a conflict between the terms of an Order Form and this PSA, the PSA shall control unless expressly set forth in the Order Form. 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.

13.7. 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.

13.8. 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.

13.9. 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.

13.10. 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.

13.11. Counterparts. This PSA 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.