Effective Starting: October 30, 2019
PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION PROVISION THAT REQUIRES THE USE OF ARBITRATION TO RESOLVE DISPUTES.
- Use of the Service.Our “Service” includes our cloud based application and platform for IT on-call management, alerting, Incident tracking, and Incident and alert analytics, and Our Professional Services. “Professional Services” means any consulting, architecture, training, configuration or other similar ancillary Services set forth in an order form. An “Incident” is an event that triggers the Service to alert Your personnel Using certain Contact Information. You must configure the Service, provide and maintain accurate Contact Information, follow proper procedure in communicating alerts and triggering events for Incidents to Us and submit alert requests through proper channels, including, without limitation, alternate channels if standard channels are unavailable, or the Service may not function properly. “Contact Information” means the names, email addresses, telephone numbers, and other required personal information that You want the Service to alert in the event of an Incident and who have consented to receive such messages via the Service (each a “Contact Person”). You will need to designate individuals authorized to maintain the Contact Information, configure the Service for handling Incidents, and receive reports from the Service (each a “User”). Instructions on how to configure the Service, provide Contact Information and otherwise get the full benefit of the Service will be found in the readme and help files, knowledge base, and other documentation made available at https://www.pagerduty.com/support/ (“Documentation”). We may suspend or terminate Your Use of the Service at any time if You breach any terms of this Agreement, including without limitation failing to pay Fees.
- Affiliates. If any of Your Affiliates Use the Service(s) under this Agreement, then all of the terms of this Agreement that apply to You shall apply to such Affiliate and its activities hereunder. You will remain responsible for the acts and omissions of Your Affiliates in connection with each Affiliate’s use of the Service(s), during the Subscription Term of its/their orders, including, without limitation, breach of the terms of this Agreement applicable to such Affiliate, even if such Control is no longer maintained. Any claim from any Affiliate that uses the Service(s) under the terms of this Agreement shall only be brought against Us by You on behalf of such Affiliate. Notwithstanding the foregoing, We may refuse to provide the Service(s) to any Affiliate that fails to pass, in Our reasonable business judgement, a background check or financial history audit. “Affiliate” means any entity which directly or indirectly Controls, is Controlled by, or is under common Control with the Party. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the Party.
- Trial Period.You may use the Service for a fifteen (15) days trial period, solely for evaluation purposes, starting on the date that You registered with Our Service and accepted this Agreement without charge or further commitment. The Service will automatically cease functioning at the end of the trial period unless i) You supply Your credit card or other payment information and purchase a subscription to the Service; or ii) PagerDuty extends Your trial in its sole discretion. After the end of the trial period, unless You purchase prior to the end of the trial period a subscription to the Service, all Contact Information and other data You provide to the Service (“Customer Information”) will no longer be available. During the trial period You are free to add and remove Users as needed for the evaluation. However, any Users included in a paid subscription to the Service, can only be added or removed in accordance with the terms of the specific plan or term You purchase. DURING THE TRIAL PERIOD, WE WILL HAVE NO OBLIGATION WHATSOEVER TO CONTINUE PROVIDING THE SERVICE TO YOU, AND YOU WILL HAVE NO CLAIM OR REMEDY FOR THE FAILURE OF THE SERVICE. THESE LIMITATIONS ARE IN ADDITION TO THE WARRANTY DISCLAIMERS AND LIABILITY LIMITS IN THIS AGREEMENT.
- Pre-Release Technology. From time to time, We in our sole discretion may make beta or otherwise pre-general release versions of our Services (“Pre-Release Technology”) available to You at no additional charge. If You use any Pre-Release Technology, the terms of this Section will govern that use, and control over any conflicting provisions of this Agreement. Pre-Release Technology is Our Confidential Information, and notwithstanding anything to the contrary in this Agreement, You may not provide access to or disclose the existence of Pre-Release Technology to any third party. You may use the Pre-Release Technology only for internal testing and evaluation. We provide the Pre-Release Technology: (a) free of charge; (b) without support; (c) “AS IS”; and (d) WITHOUT INDEMNIFICATION, WARRANTY, OR OBLIGATION TO YOU OF ANY KIND. No service level commitment will apply to the Pre-Release Technology. Certain features or functionality of the Services may not be available in Pre-Release Technology. Our providing any Pre-Release Technology does not constitute Our commitment to offer the Pre-Release Technology on a generally available basis or to continue to provide You with access to the Pre-Release Technology. We may modify Pre-Release Technology or terminate Your access to it at any time in Our sole discretion, and any such modification or termination will not be deemed a material, detrimental change under this Agreement. The aggregate liability (excluding indirect damages, for which We expressly disclaim all liability) of Us, Our affiliates and suppliers, for any claim arising from Your use of Pre-Release Technology will not exceed one-thousand U.S. dollars ($1,000 USD). Feedback you provide with regard to Pre-Release Technology is subject to Section 7c (Feedback) below.
- Subscription Terms.Subject to payment of all Fees and the terms and conditions of this Agreement, We hereby grant You a limited, non-exclusive, non-sublicensable and nontransferable right during the Subscription Term of this Agreement to use the Service only in accordance with the Documentation, solely for Your internal purposes. You must purchase a subscription for each User that will access the Service. If more than the permitted number of Users access the Service, You will be charged the applicable Fees for the excess Users. You may add Users from the Service dashboard as needed, subject to paying applicable additional Fees. User subscriptions cannot be shared or used by more than one (1) User but may be reassigned to a new User replacing a person who no longer requires access to the Service. You are solely responsible for selecting secure User passwords, changing passwords frequently, maintaining the confidentiality of User logins and passwords, and restricting access to the Service. We assume no responsibility for damage or loss arising from unauthorized access to the Service and Your account due to Your failure to protect Your account through proper maintenance of User logins and passwords. The Service is subject to certain limitations on the number of email alerts, phone call alerts, SMS alerts and other types of alerts, each as specified on our Website (“Alert Limits”). You will be charged the applicable Fees for any alerts in excess of the Alert Limits. The Service may be subject to other limitations as set forth in the Documentation, including, but not limited to, limits on disk storage space, the rate of incoming email requests, the number of inbound calls permitted to the API within a specified period of time, the number of outbound calls the Service will make to a client API within a specified period of time, and the number of alerts the Service will send to a Contact Person within a specified period of time. You acknowledge that exceeding these other limitations may cause the Service to malfunction, may accrue additional Fees, or may result in suspension of the Service until compliance has occurred.
- Restrictions on Use.You may not use the Service or Documentation except as permitted in this Agreement. Without limiting the foregoing, You may not cause or permit any third party to, (i) alter, modify or create any derivative works of the Service, the underlying source code, or the Documentation in any way, including without limitation customization, translation or localization; (ii) rent, lease, license, sublicense, encumber, sell, offer for sale, or otherwise transfer rights to the Service or Documentation, including for timesharing or as a service bureau; (iii) port, reverse compile, reverse assemble, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Service; (iv) copy, distribute, link, frame, mirror or otherwise make available any portion of the Service to any third party; (v) remove or alter any logos, trademarks, links, copyright or other notices, legends or markings from the Service or Documentation; (vi) attempt to bypass or tamper with the security, operation of the Service; (vii) attempt to access the accounts or data of any other customer or User; or (viii) use the Service for benchmarking purposes or otherwise to analyze its workings and features for competitive purposes or in a manner that imposes unusual demands on the service outside of normal functions and operations.
- Proprietary Rights.
- Contact Information and Customer Materials. You will retain all right, title and interest in and to the Contact Information and all intellectual property rights therein. Nothing in this Agreement will confer to Us any right of ownership or interest in the Contact Information, other than the limited license set forth herein. You agree to provide Us with reasonable access to Your Customer Materials as reasonably necessary for Our provision of Professional Services. “Customer Materials” means Your materials, systems, personnel and other resources.
- Company Intellectual Property. We shall retain all right, title and interest in and to the Company Intellectual Property, and any changes, derivatives, corrections, developments, bug fixes, enhancements, updates and other modifications, improvements thereto, and as between the parties all such rights shall vest in and be assigned to Us. Nothing in this Agreement will confer on You any right of ownership or interest in the any Company Intellectual Property, other than the limited license set forth herein. “Company Intellectual Property” means Our proprietary technology, including the Service and Documentation, Websites, software tools, hardware designs, algorithms, software, APIs, user interface designs, architecture, documentation, network designs, know-how, and trade secrets, improvements, materials, methods, processes, formulas, techniques, deliverables and other information developed or otherwise made in whole or part by Us in the performance of the Services, and all intellectual property rights therein and thereto throughout the world (whether owned by Us or licensed to Us by a third party).
- Feedback. We encourage You to provide suggestions, proposals, ideas, recommendations, or other feedback regarding improvements to the Service(s) and related resources (“Feedback”). To the extent You provide Feedback, You grant Us a non-exclusive, royalty-free, fully paid, sub-licensable, transferable, irrevocable, perpetual, worldwide right and license to make, use, sell, offer for sale, import and otherwise exploit Feedback (including by incorporation of such Feedback into the Service(s) without restriction); provided that such Feedback does not identify You or Your Users or include any Contact Information without Your prior written consent.
- Warranty Related to SMS Use in the United States.
By signing up to the Service, You agree to receive SMS and other types of messages from Us (“Messaging”), and You represent and warrant that You shall (i) receive and will maintain consents from each Contact Person who will receive messages, (ii) maintain procedures for each Contact Person to opt out of participating in Messaging, and once opted-out, You will not re-enroll any Contact Person to Messaging until You have obtained renewed consent from Contact Person to receive Messaging through the Service, and (iii) comply with all applicable law relating to Messaging in Your use of the Service, including without limitation, the Telephone Consumer Protection Act and CAN-SPAM. You shall be responsible for compliance with Messaging and related data privacy laws.
- Support, Security and Privacy.
- We shall provide support for the Service as selected by You, depending upon the plan when You enroll in the Service. The applicable support policies can be found on Our website at http://www.pagerduty.com/support-policy.
- We shall maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Contact Information. Without Your prior written consent, We shall not (i) modify Contact Information, (ii) disclose Contact Information to a third party (except as needed to perform the Service or if required to do so by law or governmental process), or (iii) access Contact Information except to provide the Service and prevent or address Service or technical problems. In the event of an intrusion or other breach of the Service’s security, Company shall use reasonable efforts to (a) notify You of the breach, once a full investigation into the nature of the breach has been conducted and concluded, and sufficient steps to remediate or correct the breach have occurred to secure customer data and such steps would not be further jeopardized by such notification, and (b) resolve the breach and recover any data disclosed as a result thereof.
- Fees and Payment Terms.
- You shall pay all Fees associated with Your Use of the Service as set forth on Our website and/or order form (“Fees”). “Subscription Term” means the subscription period You contract for for Your Use of the Services as set forth in the applicable order form or self-service check-out.
- Order Forms: Except as set forth in the applicable order form, You will pay all Fees associated with an order form, in accordance with the following: (a) Fees are invoiced in advance for annual plans; (b) the first invoice will coincide with the order start date; (c) payment will be due within thirty (30) days from the date of the invoice. Upon a fully executed order form, Your order is non-cancellable and nonrefundable except as provided in this Agreement, and the Subscription Term as set forth in the order form is a continuous and non-divisible commitment for the entire duration of the Subscription Term.
- Self-Service: For self-service annual plans: (i) You must indicate an initial number of Users and may not reduce that number during the Subscription Term of the plan; (ii) for the first month, We will charge Your credit card a full year of Subscription Term Fees based on the initial number of Users, which amount is not cancellable or refundable; (iii) any Users added during the Subscription Term of Your plan will have their subscription fees calculated at the rate then in effect and prorated for the remainder of the Subscription Term so that all User subscriptions shall terminate on the same date and We will charge the prorated amount to Your credit card in the month in which the Users are added. For self-service month-to-month plans: (i) You must select a plan, which you can cancel at any time; (ii) We will charge Your credit card monthly, in arrears, based on the largest number of Users active on any day of the month; (ii) We reserve the right to change the Fees at any time. We will charge Your card on a monthly basis, but may change the date on which the charge is posted at any time. You will pay any applicable taxes, if any, relating to any such purchases, transactions or other monetary transaction interactions.
- You are responsible for keeping all account information accurate and up-to-date, including credit card, address, and account contact information. You hereby represent that You have the right to provide Us with Your credit card information and authorize Us to charge the credit card for all Fees. You agree to pay all charges incurred by Users of Your credit card, debit card, or other payment method used in connection with a purchase or transaction or other monetary transaction interaction with the Service at the prices in effect when such charges are incurred. All Fees are payable in United States dollars and are non-cancelable and non-refundable except as otherwise set forth herein. You shall be responsible for paying all sales, use, value added or other taxes, except for taxes based on our income. For unpaid payments, not properly disputed, We may without waiving or prejudicing any other rights or remedies available to Us, a) charge the lesser of 1% per month or the maximum rate permitted by applicable law, b) suspend the Services immediately until Your Fees is brought current, and/or c) where applicable, automatically accelerate all remaining payments such that the total Fees under the order become immediately due and payable. If You are paying by a credit card, and if Your credit card is declined for any installment, beginning five (5) days after the unsuccessful charge, We may suspend the Services immediately until Your payment is brought current. If a PO number is required in order for an invoice to be paid, then You must provide such number by emailing email@example.com within three (3) days of execution of an order form. However, You agree that a failure to provide a PO does not relieve You of Your obligations to pay Your Fees. California Residents. The provider of Services is: PagerDuty, Inc., 600 Townsend Street #125, San Francisco, CA 94103. If You are a California resident, in accordance with Cal. Civ. Code §1789.3, You may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.
- You will notify Us in writing in the event You have a good faith dispute as to Fees or taxes payable by You under this Agreement by emailing firstname.lastname@example.org. You will provide such notice to Us prior to the due date of the invoice containing such Fees or taxes due that are in dispute and the parties will work together to resolve the applicable dispute promptly. You will pay all amounts that are determined to be payable by resolution of the dispute (by adversarial proceedings, agreement or otherwise) within ten (10) days following such resolution.
- Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a party to this Agreement (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Contact Information and any ancillary information, such as account information, and alert priorities. Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was or becomes known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party as evidenced by written records, or (iii) is independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information.
- Protection of Confidential Information. Receiving Party shall not disclose Disclosing Party’s Confidential Information to any third party except as permitted by this Agreement. Receiving Party shall only use Disclosing Party’s Confidential Information to fulfill its obligations under this Agreement. Receiving Party shall use the same degree of care to protect the confidentiality of the Confidential Information that it uses to protect its own confidential and proprietary information (but in no event less than reasonable care). Receiving Party may disclose Confidential Information to its employees, consultants and agents who reasonably need to know such Confidential Information for purposes of this Agreement, provided that Receiving Party shall ensure that such employees, consultants and agents are bound by obligations of confidentiality substantially the same as the obligations in this Section. Receiving Party shall be liable for any disclosures of Confidential Information by its employees, consultants and agents in violation of this Section.
- Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law or governmental authority to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. The Receiving Party shall limit any disclosure of Confidential Information pursuant to this Section to the extent strictly necessary to comply with the applicable request by such governmental entity. Any disclosure of Confidential Information pursuant to this Section shall not affect the confidential treatment of such disclosed Confidential Information.
- Remedies. Receiving Party agrees that a breach of this Section may result in immediate and irreparable harm to Disclosing Party that money damages alone may be inadequate to compensate. Therefore, in the event of such a breach, Disclosing Party will be entitled to seek equitable relief, including but not limited to a temporary restraining order, temporary injunction or permanent injunction without the posting of a bond or other security.
- By You. You agree to defend, indemnify and hold Us harmless from and against all claims, losses and damages, suits, government investigations, fines, actions, damages, settlements, losses, liabilities, costs and expenses (including reasonable attorneys’ fees) for any breach of Your representations, warranties and covenants set forth in Section 8 above.
- Warranties; Disclaimers.
- We warrant that the Service will perform in accordance with the Service Level Agreement (SLA) set forth on our website at https://www.pagerduty.com/standard-service-level-agreement/; provided, however, that the sole remedy for breach of this warranty or failure of the Service to perform shall be as set forth in that SLA.
- You represent and warrant that You will not use the Service in any country embargoed by the United States and neither You, nor Your Users are a foreign person or entity blocked or denied by the United States government. You further represent and warrant that You are entirely responsible for Your compliance with all applicable United States laws and regulations and with all applicable local laws and regulations, including but not limited to export and import regulations.
- Professional Services Warranty. We warrant to You that the Professional Services will be performed in a competent and workmanlike manner in accordance with accepted industry practices and the terms and conditions herein. However, if You do not provide Us timely access to Your Materials in Our performance of Professional Services, then Our performance will be excused until You do so. Your exclusive remedy for breach of this warranty is to notify Us in writing within thirty (30) days of the non-conforming Services. Upon receipt of such notice, at Our option, We will either use commercially reasonable efforts to re-perform the Professional Services in conformance with these warranty requirements or will terminate the affected Professional Services and will refund You the prorated amount of Fees for the unperformed and non-conforming Professional Services. This Section (Performance Standard) sets forth Your exclusive rights and remedies and Our sole liability in connection with the warranty.
- EXCEPT FOR THE FOREGOING, WE PROVIDE THE SERVICE AND DOCUMENTATION “AS IS” WITHOUT ANY WARRANTY WHATSOEVER AND HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THAT THE SERVICE WILL BE FREE FROM ERRORS OR VIRUSES, IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, RELIABILITY, ACCURACY, SECURITY OF DATA, OR ACHIEVEMENT OF RESULTS.
- WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT, SERVICE OR CONTENT ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE, SERVICE OR CONTENT, AND WE SHALL NOT BE A PARTY TO, LIABLE FOR NOR DO WE IN ANY WAY MONITOR, ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
- Reseller Transactions. If any of Your purchases were made through an authorized reseller of Ours (“Reseller”):
- You will pay any owed amounts to the Reseller, as agreed between You and the Reseller. You agree that We may suspend or terminate Your use of the Services if We do not receive Our payment of Fees from the Reseller.
- You may place Your order through the Reseller via an order placed with Us, or through Your purchases via the self-service function in the Service. The Reseller and You are responsible for the accuracy of the orders placed.
- Reseller may not modify this Agreement or make any commitments on Our behalf. Only this Agreement govern Our obligations to You.
- Your renewal pricing will be communicated to you by the Reseller in accordance with the terms You have with the Reseller or Us prior to the renewal Subscription Term, under Section 18.
- Modifications to this Agreement.We reserve the right, at Our sole discretion, to modify or replace any part of this Agreement by (i) posting a revised Agreement on Our site or (ii) providing notice to You of the change. modifications will take effect at the start of the month following notice for self-service month-to-month plans, and at the end of the prepaid Subscription Term for all other plans.
- Arbitration. READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US. For any dispute with Us, You agree to first contact Us at email@example.com and attempt to resolve the dispute with Us informally. In the unlikely event that We have not been able to resolve a dispute with You after sixty (60) days, any controversy or claim arising out of or relating to this Agreement, or the breach hereof, shall be settled by arbitration in the city of San Francisco, California, by binding arbitration by JAMS, Inc. (“JAMS”), under the Optional Expedited Arbitration Procedures then in effect for JAMS. JAMS may be contacted at www.jamsadr.com. Any award shall be final, binding and conclusive. A judgment upon the award rendered may be entered in any court having jurisdiction thereof. Nothing in this Section shall be deemed as preventing Us from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of Our data security, or Our intellectual property rights or other proprietary rights.
- Term and Termination.This Agreement commences when You accept the terms, and expire on the date of expiration or termination of all Subscription Terms (“Term of Agreement”). At the end of each Subscription Term, the associated order shall automatically renew for an additional annual term at the prices communicated to You at least sixty (60) days prior to the end of that Subscription Term (or the same prices as the prior Subscription Term if no new prices are provided), unless You notify Us of Your intent not to renew by sending an email to firstname.lastname@example.org at least thirty days (30) before the renewal date. We will send the renewal notice to the contact email listed on the account unless You notify Us to use another email contact with Your account. If You have Your credit card number on file, Your card will be charged for the renewal term in accordance with the billing terms set forth in these terms. You may choose to terminate this Agreement and all orders at any time for any reason with written notice, provided that upon such termination: i) You will not be entitled to a refund of pre-paid Fees and ii) all remaining Fees for a then-current order or Subscription Term that are outstanding will become immediately due and payable. Either party may terminate this Agreement upon thirty (30) days’ prior written notice to the other party for a material breach that remains uncured at the expiration of such period. Immediately upon termination of this Agreement for any reason, You will (i) cease use of the Service, (ii) pay in full all Fees due upon termination, and (iii) return or destroy all copies of Our Confidential Information. After the expiration or termination of this Agreement for any reason Your account shall be deactivated and all Contact Information deleted. All provisions of this Agreement which by their nature should survive cancellation or termination of this Agreement shall survive cancellation or termination.
Neither Party shall refer to the identity of the other Party in promotional material, publications or other forms of publicity relating to the Service unless the prior written consent of the other Party has been obtained; provided, however, that We may use Your name and logo for the limited purpose of identifying You as a customer of Our Services on Our websites, and in other marketing materials distributed by Us (which may include emails and other web and print materials).
- Miscellaneous. You will only use the Service in accordance with applicable law, including without limitation all export control laws. This Agreement shall be governed by and interpreted in accordance with the laws of the state of California without regard to its conflict of laws provisions. You may not assign, sublicense, delegate or otherwise transfer any of Your rights or obligations under this Agreement without Our prior written consent. We may assign this Agreement at Our sole discretion. This Agreement shall be binding upon and shall inure to the benefit of the parties, their successors and permitted assigns. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be construed to reflect the parties’ original intent, and the remainder of this Agreement shall remain in full force and effect. This Agreement constitutes the entire understanding and Agreement of the parties with respect to its subject matter and supersedes all prior and contemporaneous Agreements or understandings. The failure of either party to enforce any of the provisions of this Agreement shall not be construed to be a waiver of the right of such party thereafter to enforce such provisions. The parties to this Agreement are independent contractors and no agency, partnership, joint venture, employment or similar relationship exists between them. Neither party has the authority to bind the other or incur any obligation on its behalf. Notices required hereunder shall be effective upon their delivery by email, courier or delivery service (effective upon receipt), or first class United States mail, return receipt requested (effective upon receipt).