Novus Product Testing and Advisory Agreement
Welcome to Pendo’s Novus Product Testing and Advisory Program (“Program”) By submitting this form, You are agreeing to comply with this Novus Product Testing and Advisory Agreement (“Agreement”). “You” or “Participant” means you or the company, organization, or other entity on whose behalf you are signing. By submitting this form, You represent and warrant that You have authority to bind the entity to this Agreement.
Generally. Through the Program, Pendo.io, Inc. ("Pendo") may allow You to access and test Project Novus, a pre-production continuous product intelligence system ("Program Technology"). Your use of the Program Technology is subject to this Agreement, as well as Pendo's applicable Terms of Service ("Online ToS"), which are incorporated into this Agreement by reference. In the event of any conflict between the Online ToS and this Agreement, this Agreement controls.
Data Processing. Participant acknowledges that Pendo's access to and analysis of the designated repository in connection with the Program is subject to Pendo's Data Processing Addendum ("DPA"), available at https://www.pendo.io/contract-center, and as supplemented by the Supplement to Annex 1 appended hereto, both of which are incorporated into this Agreement by reference. Participant's submission of this form constitutes Participant's agreement to the DPA and Supplement to Annex 1 in addition to this Agreement.
Feedback. In connection with the Program, Pendo may ask You to provide feedback ("Feedback"), including on pull request suggestion quality, selector accuracy, and developer workflow impact. You have no obligation to provide Feedback, but if You do, it must: (a) be truthful; (b) originate only from You; and (c) not contain any third party's confidential information. You agree that Pendo may use Feedback without obligation or compensation to You, including to improve its products and services.
Live Sessions and Recordings. In connection with the Program, Pendo may invite You to participate in interviews or product reviews with Pendo's product and engineering teams. If You participate, You consent to Pendo recording such sessions and agree that Pendo may use such recordings for internal research and product development purposes.
Participation Data. Pendo will not share data You provide through Your participation in the Program with third parties in a manner that identifies You without Your permission, except for third parties operating on Pendo's behalf and for whom Pendo remains responsible.
No Compensation. Pendo will not compensate You for Your participation in the Program.
Termination. This Agreement becomes effective upon Your enrollment and continues until terminated. Either party may terminate for convenience at any time by providing written notice to the other party. All sections that by their nature should survive termination will survive termination.
Risks. The Program Technology is pre-production software. It may not perform as specified or may not remain available to You. Pendo is not responsible for any risks that may arise from Your participation in the Program, including Your use of the Program Technology.
Conditions. You may use the Program Technology solely to participate in the Program, subject to the following:
Ownership; Suggestions. Pendo retains all rights, title, and interest in the Novus platform and all related technology, models, and materials made available through the Service. You do not acquire any intellectual property rights in the foregoing under this Agreement.
Where the Service generates code recommendations, suggested changes, or other outputs based on Your repository or inputs ("Suggestions"), You retain ownership of your underlying code and repository. However, to the extent any Suggestion is incorporated into your codebase, you hereby grant Pendo a perpetual, irrevocable, royalty-free, worldwide license to use, reproduce, and improve upon such Suggestion for any purpose, including product development, and delivery of the Program to other customers. Pendo may also provide the same or similar Suggestions to other customers, and no exclusive rights to any Suggestion are granted to you under this Agreement.
You are responsible for evaluating all Suggestions before use or incorporation and assume all risk associated with reliance on them.
Code Analysis. In connection with the Program, Pendo will access and analyze Your designated source code repository in order to deliver the functionality of the Program Technology. You hereby grant Pendo a limited, non-exclusive license to clone, access, and analyze Your designated repository solely for the purposes of this Program. Specifically:
Data Protection. To the extent that Pendo processes any personal data in connection with the Program, including personal data incidentally present in Your designated repository, such processing is subject to Pendo's DPA, as supplemented by the Supplement to Annex 1 (Novus Processing Activities) thereto, both of which are incorporated into this Agreement by reference pursuant to Section 1 In the event of any conflict between the DPA and this Agreement with respect to the processing of personal data, the DPA controls.
End-User Compliance. You represent and warrant that Your organization has obtained all required end-user notices and consents under applicable laws prior to sharing any data with Pendo through the Program, including consents for behavioral tracking, session replay (if enabled), and metadata collection. You acknowledge that You are solely responsible for ensuring compliance with applicable data privacy obligations in connection with Your use of the Program Technology.
You acknowledge that the Program Technology is highly proprietary and confidential to Pendo, including its existence, features, and functionality. You may not disclose to any third party, or otherwise make public in any manner, any information Pendo makes available to You under this Agreement, and may only use it internally for participating in the Program in accordance with Program instructions. This does not limit Your ability to disclose information when legally compelled to do so, provided You give Pendo advance written notice (unless prohibited by law) and reasonably cooperate with Pendo's efforts to seek confidential treatment or otherwise limit such disclosure.
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW: (A) THE PROGRAM TECHNOLOGY IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND; AND (B) PENDO EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, PERFORMANCE, OR TRADE USE. YOUR EXCLUSIVE REMEDY UNDER THIS AGREEMENT IS TERMINATION IN ACCORDANCE WITH THIS AGREEMENT.
EXCEPT FOR A BREACH OF SECTION 4 (CONFIDENTIALITY) OR SECTION 3 (CODE ACCESS AND DATA HANDLING), AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (I) NEITHER PARTY WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT FOR THE OTHER PARTY'S LOST REVENUES OR PROFITS, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL LOSSES, OR EXEMPLARY OR PUNITIVE DAMAGES; AND (II) EACH PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL NOT EXCEED US$500. IN THIS SECTION, "LIABILITY" MEANS ANY LIABILITY, WHETHER UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, WHETHER OR NOT FORESEEABLE OR CONTEMPLATED BY THE PARTIES.
Neither party may publicly discuss the parties' relationship under this Agreement without the other party's prior written permission. You may not assign or otherwise transfer any of Your rights or obligations under this Agreement without Pendo's prior written consent; any other attempted assignment is void. If any part of this Agreement is invalid, illegal, or unenforceable, the rest of this Agreement will remain in effect. This Agreement states the entire agreement between the parties with respect to the Program and Program Technology and supersedes all prior agreements and understandings relating thereto. This Agreement may not be amended, nor any obligation waived, except by a writing signed by both parties. This Agreement does not create any agency, partnership, joint venture, or employment relationship. All claims arising out of or related to this Agreement will be governed by the laws of the State of Delaware, excluding its conflict of laws rules, and will be litigated exclusively in the federal or state courts located in Delaware; the parties consent to personal jurisdiction in those courts.