Orchestrate Supplemental Terms Addendum
Last Updated: October 1, 2024
This Orchestrate Supplemental Terms Addendum (this “Addendum”) applies to Customer’s use of Pendo’s Orchestrate offering, as described in the Orchestrate Documentation, as may be updated by Pendo from time to time (“Orchestrate”). If Customer has not already entered into a Data Processing Addendum with Pendo, then Customer acknowledges and agrees that by executing an Order Form that references the terms of this Addendum, Customer is also accepting and agreeing to be bound by the terms of Pendo’s Data Processing Addendum, the terms of which are hereby incorporated by reference. By executing an Order Form that includes the terms of this Addendum, you agree that this Addendum amends and supplements the Pendo Software Services Agreement (“SSA”) or other agreement that governs Customer’s use of the Services (collectively, with any applicable Order Form(s) and the applicable Data Processing Addendum, the “Agreement”). In the event of a conflict between this Addendum and the Agreement, this Addendum shall supersede and control with respect to Orchestrate. Capitalized terms used and not defined in this Addendum shall have the respective meanings set forth in the Agreement.
1. ACCESS TO THE ORCHESTRATE OFFERING. Customer is solely responsible for determining which of its Users should have access to Orchestrate, and for determining the level of access and privileges to be granted to its Users. Customer will be solely responsible for enforcing any of Customer’s internal policies regarding its Users’ use of the Services and will only use Orchestrate in full compliance with Pendo’s Acceptable Use Policy. Customer acknowledges that Orchestrate is not currently sold as a standalone product, and as such, (a) access to Orchestrate may require Customer to purchase other Services provided by Pendo, such as Guides; and (b) termination or expiration of Customer’s access to such Services may result in termination of Customer’s access to Orchestrate.
2. PRICING. Customer shall pay Pendo for use of Orchestrate as set forth in the applicable Order Form and in accordance with the terms set forth in the Agreement. If Customer has purchased a package that includes a number of Units, then unless otherwise specified in the Order Form, no refunds will be given in the event that Customer does not utilize all such Units. In the event that Customer exceeds the Units specified in the Order Form, Pendo shall have the right to charge Customer its standard Unit-based fee unless the Parties agree otherwise.
3. MESSAGES. Customer acknowledges and agrees that it is solely responsible for (a) the content of any messages that Customer sends using Orchestrate or that Users authorize to be sent using Orchestrate (collectively, “Messages”), regardless of whether the content of such Messages originated from Customer or was suggested as an Output via the Services; (b) reviewing and approving all Messages to ensure such Messages are accurate and otherwise suitable for Customer’s intended purpose prior to sending any such Messages to Customer’s End-Users; (c) providing all notices and obtaining all consents, in each case, as necessary to permit Pendo to send all Messages to End-Users; (d) ensuring that Messages do not contain false or misleading header information and routing information; and (e) identifying the Customer as the Messages initiator. All Outputs generated by the Services are provided for Customer’s informational purposes only and Pendo does not guarantee the accuracy, completeness, or usefulness of any Messages or other Outputs suggested or provided through the Services. Additionally, due to the nature of generative artificial intelligence, Messages created via the Services may not be unique, and nothing in the Agreement will be deemed to prohibit Pendo from generating and/or providing the same or similar Output for Customer as it generates and/or provides for other users. Because Customer’s Users are responsible for reviewing and approving Messages prior to sending them to End-Users, Pendo will have no responsibility for the timeliness, deletion, mis-delivery, or failure to store any Messages. As between the parties, Customer is responsible for obtaining and providing any permissions necessary to enable Users to send Messages using Customer’s email domain in connection with such Users’ access to or use of Orchestrate. “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. “End-User” means the individual who uses the digital product on which Customer installs Pendo’s Software.
4. PROHIBITED CONTENT. Customer may not, and will ensure its Users will not, send or authorize the following content be sent using Orchestrate: (a) pornography or sexually explicit content; (b) statements about products claiming to prevent, treat, or cure health issues (e.g., illness or disease) that have not been approved by the applicable government authority or are not permitted under applicable law or regulation; (c) advertising for prescription medication that cannot legally be sold over-the-counter; (d) content that is fraudulent or that Pendo determines in good faith is intended to mislead a recipient (e.g., phishing emails, chain letters, pyramid schemes) or cause harm or damage (e.g., malware or viruses); or (e) content that is otherwise objectionable, as determined by Pendo in its sole discretion.
5. MODIFICATIONS. Please note that the Services, including Orchestrate, are evolving. Pendo may modify this Addendum from time to time by giving notice to Customer by sending Customer an email to an e-mail address for any of Customer’s administrative users, by prominently posting notice of the changes on the Services, or in any other manner permitted by the Agreement. In the event that such e-mail address is not valid, or for any reason is not capable of delivering to Customer the notice described above, Pendo’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. The modifications become effective upon Customer’s continued use of Orchestrate after such notice or Customer’s affirmative acceptance, whichever earlier. IF CUSTOMER DOES NOT AGREE TO ANY CHANGES AFTER RECEIVING A NOTICE OF SUCH CHANGES, CUSTOMER SHOULD STOP USING ORCHESTRATE AND CONTACT PENDO AT [email protected]. If Customer notifies Pendo in writing at [email protected] of Customer’s objection to the modifications within thirty (30) days after the date of such notice, Pendo (at its option and as Customer’s exclusive remedy) will either: (i) permit Customer to continue under the existing version of this Addendum until expiration of the then-current term of Customer’s Order Form(s) for Orchestrate (after which time the modified Addendum will go into effect), or (ii) allow Customer to terminate the applicable Order Form(s) for Orchestrate. Customer may be required to click to accept the modified Addendum before using Orchestrate.
6. MONITORING. Although Pendo has no obligation to monitor Customer’s use of the Services, Pendo reserves the right in its sole discretion to (a) pre-screen, refuse, or remove any Messages or other Customer Data from the Services, including if Pendo believes it violates the Agreement, applicable laws and regulations, or is otherwise objectionable; and (b) terminate accounts as set forth in Pendo’s Intellectual Property Policy.
7. COMMUNICATIONS WITH END-USERS. Customer agrees that Pendo is not liable for Customer’s relationship with its End-Users or any of Customer’s interactions with such End-Users.
8. REPRESENTATIONS AND WARRANTIES. Customer represents and warrants that (a) it will comply with all of its obligations under all applicable laws (including, without limitation, the CAN-SPAM Act), including (i) maintaining an accurate, current, and effective suppression list with respect to email communications with its End-Users; and (ii) providing all notices and obtaining all consents necessary to send Messages, including any emails, prepared or initiated via the Services; (b) the Messages do not infringe upon or violate any copyright, trademark, privacy, publicity, or other proprietary right of any third party; (c) it will not use the Services in any way that is prohibited under this Agreement or Pendo’s Acceptable Use Policy; (d) it will not use any techniques or practices to evade mechanisms, filters (e.g., spam filters), and detection capabilities (e.g., anti-abuse or spam detection mechanisms) designed to identify unsolicited or unwanted emails; (e) it will not disguise, falsify, or manipulate the subject matter, header, or transmission path information of any email; and (f) it will not use the Services to conduct security testing, including simulated phishing and other activities that may resemble social engineering or similar attacks.
9. INDEMNITY. Customer agrees to indemnify and hold Pendo harmless from any losses, damages, judgments, fines, and costs, including legal fees and expenses, in connection with any claims arising out of or relating to: (a) Customer Data, including with respect to any Messages; (b) Customer’s use of Orchestrate and any activity that occurs under Customer’s account in violation of the Addendum or applicable laws or regulations; and (c) any failure to provide notices or obtain the necessary consents to communicate with End-Users. Pendo reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Customer, in which event Customer will fully cooperate with Pendo in asserting any available defenses. This provision does not require Customer to indemnify Pendo for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with the Services provided hereunder. Customer agrees notwithstanding any other provision to the contrary, no cap or limitation on liability elsewhere in this Agreement shall apply to Customer’s obligations under this indemnity provision and that the provisions in this Section will survive any termination of its account, this Agreement, and/or its access to the Services.