# Terms of Service
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Table of Contents
### Product Terms
Terms of Service
Standard Service Level Agreement
Product-Specific Terms
### Partner Terms
One-Time Reseller Agreement
### Policies & Other Terms
Privacy Policy
Acceptable Use Policy
Community Policy
Champions Terms
DMCA Takedown Notice
Subprocessors
Support Policy
CSE Usage Policy
Jeli Legacy Support Policy
Process Automation
Data Processing Addendum
Information Security Practices
Modern Slavery Act
Safe Harbor
Cigna Machine Readable Files
Event Terms
Trial Terms
### Security
Overview
Security Disclosure
Safe and Secure Generative AI
In Scope Services
### Privacy
Privacy FAQs
Privacy Shield and Schrems II
PagerDuty's GDPR Approach
Region-Specific Data Privacy Laws
**If you entered into a Subscription Term prior to December 21, 2023, your use of PagerDuty Services shall be governed by
the applicable terms located at www.pagerduty.com/legacy-agreements until the end of the applicable Subscription Term.**
***Effective:*** December 21, 2023
THESE ONLINE TERMS OF SERVICE (“AGREEMENT”) ARE A LEGAL AGREEMENT BETWEEN
CUSTOMER (AS DEFINED BELOW) AND PAGERDUTY, INC. (“PAGERDUTY”) WHICH GOVERNS
CUSTOMER’S ACCESS TO OR USE OF PAGERDUTY SERVICES (EACH, A “PARTY” AND
COLLECTIVELY THE “PARTIES”).
IF AN INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY
OR OTHER LEGAL ENTITY (“COMPANY”), SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE
THE AUTHORITY TO BIND THE COMPANY TO THESE TERMS AND CONDITIONS, IN WHICH CASE
THE TERM “CUSTOMER” SHALL REFER TO THE APPLICABLE COMPANY.
**Definitions**
“**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.
“**PagerDuty Intellectual Property**” means PagerDuty’s
proprietary technology, including but not limited to the Service(s),
Documentation, websites, software tools, hardware designs, algorithms,
software, user interface designs, architecture, network designs,
know-how, trade secrets, and all intellectual property rights therein
and thereto throughout the world whether owned by PagerDuty or licensed
to PagerDuty by a third party.
“**Confidential Information**” means all non-public
information disclosed by one Party to the other 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.
“**Contact Information**” means the names, email addresses,
telephone numbers, and other required information of the Contact Persons
that Customer or Users submit to Hosted Services to alert in the event
of an Incident, along with any ancillary information, such as Customer
information, submitted to the Hosted Services.
“**Contact Person**” means a Customer employee, consultant,
or other agent designated by Customer, who will receive notifications
from the Hosted Services and who has provided Customer consent to
receive such notifications from the Hosted Services.
“**Customer**” means, as applicable: (a) the individual
accepting or signing this Agreement on the behalf of such individual; or
(b) the company or other legal entity accepting or signing the terms of
this Agreement, and well as any then-current Affiliates of such company
or legal entity who use or purchase Service(s) under an Order Form with
PagerDuty.
“**Documentation**” means the then current online version of PagerDuty’s product and usage
guides made available at https://www.pagerduty.com/support/ for the
Hosted Services and at https://docs.rundeck.com/docs for the On
Prem Services.
“**Hosted Services**” means PagerDuty’s cloud-based products and services purchased by Customer
under an applicable Order Form or online ordering portal, as described in the Documentation. Hosted Services
does not include third party applications.
“**Incident**”** **means an event that triggers the Hosted Services to alert
Contact Persons using the Contact Information.
“**Instance**” means one running copy of the On Prem
Services installed on a server (physical or virtual) within the
Customer-controlled computing infrastructure, available for use only by
one or more Users according to the terms and conditions of this
Agreement. An Instance may run separately, or multiple Instances may
form a “**Cluster**” around common resources such as a
database.
“**On Prem Services**” means PagerDuty’s software
applications, including but not limited to updates, libraries,
plugins, and software components provided by PagerDuty for
Customer’s on-site installation and use that are made generally
available to licensed users of the software without additional fees. On
Prem Services may include code licensed under third-party terms,
including but not limited to open-source software.
“**Order Form”** means an ordering document or online order
specifying the Services to be provided hereunder and is entered into
between PagerDuty and Customer or any of its Affiliates. By entering
into an Order Form, an Affiliate agrees to be bound by the terms of this
Agreement as if an original party hereto. PagerDuty may refuse to enter
into an Order Form with any Affiliate that fails to pass, in PagerDuty’s
reasonable business judgment, a background check or financial history
audit.
**“Professional Services”** means any consulting, advisory,
training, and similar ancillary services that are set forth in an Order
Form and/or statement of work, as applicable.
“**Service(s)**” include one or more of the following as
set forth in the applicable Order Form(s): (i) Hosted Services, (ii) On
Prem Services, and/or (iii) Professional Services.
“**SLA**”** **means the service level
agreement describing the Hosted Services performance and availability
metrics and the remedies if the Hosted Services fail to meet those
metrics set forth on PagerDuty’s website at
https://www.pagerduty.com/standard-service-level-agreement/.
“**Subscription Term**” means the term of Customer’s
subscription for a Service as specified in an Order Form.
“**User**” means an authorized individual that Customer
designates to use the Service(s) under an Order Form and applicable
Documentation.
**Use of the Services.**
*Use of the Service(s). *In consideration of payment of the Fees,
subject to the terms and conditions of this Agreement, PagerDuty grants
to Customer a world-wide, non-exclusive, royalty-free, non-transferable,
non-sublicensable right to use the Service(s) in accordance with the
Documentation and applicable Order Form(s), and solely for Customer’s
internal purposes.
*Customer License Restrictions.* Customer shall not, and agrees
that it shall not permit any third-party, including without limitation
any Users, to: (i) alter, modify or create any derivative works of the
Service(s), 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(s) or
Documentation, including without limitation 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(s); (iv) copy, distribute, link, frame,
mirror, or otherwise make available any portion of the Service(s) to any
third party; (v) remove or alter any logos, trademarks, links,
copyright, or other notices, legends, or markings from the Service(s) or
Documentation; (vi) attempt to bypass or tamper with the security or
operation of the Service(s); (vii) attempt to access the accounts or
data of any other customer or user; (viii) use the Service(s) for
benchmarking purposes or otherwise to analyze its workings and features
for any competitive purposes or in a manner that imposes unusual demands
on the Service(s) outside of normal functions and operations; (ix) use,
or allow the use of, the Service(s) by anyone located in, under the
control of, or a national or resident of a U.S. embargoed country or
territory or by a prohibited end user under export control laws (as
described in Section 13.7); (x) use the Service(s) in a manner that
interferes with the use or enjoyment of it by others, including but not
limited to using the Service(s) to create, use, send, store, or run
viruses or other harmful computer code, files, scripts, agents, or other
programs, or circumventing or disclosing the user authentication or
security of the Service(s) or any host, network, or account related
thereto; (xi) use the Service(s) or Documentation in a way that violates
applicable law or infringes upon the rights of a third party, including
but not limited to those pertaining to contract, intellectual property,
privacy, or publicity; (xii) use the Service(s) or Documentation in a
way that violates the PagerDuty Acceptable Use Policy, which is
incorporated herein, and available at
https://www.pagerduty.com/acceptable-use-policy/
(the **“AUP”**); or (xiii) use the Service(s) or
Documentation in a way that effects or facilitates the storage or
transmission of libelous, tortious, or otherwise unlawful material,
including but not limited to material that is harassing, threatening, or
obscene. Notwithstanding any other provision of this Agreement, in the
event of Customer’s breach of any restrictions in this Section 2.2,
PagerDuty has the right upon notice to immediately suspend Service(s)
until such breach is corrected.
*Order Forms and Additional User Subscriptions.* Unless otherwise
specified in an Order Form, the Service(s) may be accessed by no more
than the specified number of Users and each User must be identified by a
unique email address and username. User subscriptions may only be
purchased as set forth in the applicable Order From and may not be
shared or used by more than one User without PagerDuty’s prior consent
but may be reassigned to new Users replacing persons who no longer
require User access to the Service(s). The Parties may agree to add
additional User subscriptions during the Subscription Term, either via
execution of an additional Order Form or through the Hosted Services
interface self-service option. Unless otherwise specified in the Order
Form, such added User subscriptions will be coterminous and prorated to
the end of the Subscription Term in the Order Form. Use of the
Service(s) is permitted only if the User is under confidentiality
obligations with Customer at least as restrictive as those in this
Agreement and is accessing or using the Service(s) solely to support
Customer’s and/or Customer Affiliates’ internal business purposes.
*Usage Limits for On Prem Services.*Customer’s use of the Service(s) may be subject to limitations, including but not limited to number and types of Users, email alerts, phone call alerts, SMS
alerts, and Instances of the installed On Prem
Services as specified on the PagerDuty website or in the Order Form. The
Service(s) may be subject to other limitations as set forth in the
applicable Order Form or Documentation, including but not limited to
limits on disk storage space, the rate of incoming email requests, the
number of calls permitted to the API within a specified period of time,
the number of alerts the Service(s) will send to a Contact Person within
a specified period of time, and the number of Instances of installed On
Prem Services. Customer acknowledges that failure to comply with such
limits may cause the Service(s) to malfunction, may accrue additional
usage fees, or may result in suspension of the Service(s) until
compliance has occurred.
*Additional Customer Responsibilities. *Customer is solely
responsible for selecting secure User passwords, changing passwords
frequently, and maintaining the confidentiality of usernames and
passwords. PagerDuty shall not be liable for any losses arising from
unauthorized access to the Service(s) or Customer’s account that is due
to Customer’s or any User’s failure to protect its account through
proper maintenance of User logons and passwords. Customer shall only use
and configure the Services in accordance with the terms of this
Agreement, the Documentation and any applicable Order Forms.* *
*Product*-*Specific Terms.* Some Services may be subject
to additional product specific terms or pricing terms specific to
that Service, available at
https://www.pagerduty.com/product-specific-terms/
(“**Product-Specific Terms**”), which PagerDuty may update
from time to time in its sole discretion.
**Trial Period and Free Plan.** If Customer ordered a “trial” or other limited
period no-charge plan, Customer may use the Service for a fourteen (14) day
trial period, or as otherwise expressly set forth in the order (the **“Trial
Period”**), solely for evaluation purposes, starting on the date that Customer
registered with Our Service and accepted this Agreement, without charge or
further commitment. The Hosted Services will automatically cease functioning
at the end of the Trial Period unless (i) Customer supplies payment card or
other payment information and purchase a subscription to the Service; (ii)
Customer elects to use the Service under the Free Plan (defined below); or
(iii) PagerDuty extends Customer’s Trial Period in its sole
discretion.* *After the end of the Trial Period, unless Customer
purchases, prior to the end of the Trial Period, a subscription to the Service
or elect to use the Service under the Free Plan, all hosted Contact
Information and other data Customer provides to the Services **(“Customer
Information”)** will no longer be available to Customer. During the Trial
Period, Customer may add and remove Users as needed for the evaluation.
However, any Users included in a paid subscription to the Services or
otherwise under the Free Plan, can only be added or removed in accordance with
the terms of the specific plan or term Customer elects. If Customer elects to
use the Hosted Services under the limited free to use option, and PagerDuty
agrees (the **“Free Plan”**), Customer acknowledges and accepts that PagerDuty may
terminate Customer’s use of the Services under the Free Plan for any reason or
no reason at all and without any required prior notice. DURING THE TRIAL
PERIOD AND USE UNDER THE FREE PLAN, PAGERDUTY WILL HAVE NO OBLIGATION
WHATSOEVER TO CONTINUE PROVIDING THE SERVICES, AND CUSTOMER WILL HAVE NO CLAIM
OR REMEDY FOR THE FAILURE OF THE SERVICES. THESE LIMITATIONS ARE IN ADDITION
TO THE WARRANTY DISCLAIMERS AND LIABILITY LIMITS IN THIS AGREEMENT.
**Pre-Release Technology.** From time to time, PagerDuty may, in its sole
discretion, make beta or otherwise pre-general release versions of PagerDuty
Services (**“Pre-Release Technology”**) available to Customer at no additional
charge. If Customer uses 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 PagerDuty’s Confidential Information, and
notwithstanding anything to the contrary in this Agreement, Customer may not
provide access to or disclose the existence of Pre-Release Technology to any
third party. Customer may use the Pre-Release Technology only for internal
testing and evaluation. PagerDuty provides the Pre-Release Technology: (a)
free of charge; (b) without support; (c) “AS IS”; and (d) WITHOUT
INDEMNIFICATION, WARRANTY, OR OBLIGATION TO CUSTOMER 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.
PagerDuty’s provision of any Pre-Release Technology does not constitute a
commitment to offer the Pre-Release Technology on a generally available basis
or to continue to provide Customer with access to the Pre-Release Technology.
PagerDuty may modify Pre-Release Technology or terminate Customer’s access to
it at any time in PagerDuty’s sole discretion, and any such modification or
termination will not be deemed a material, detrimental change under this
Agreement. The aggregate liability (excluding indirect, special, and
consequential damages, for which PagerDuty expressly disclaim all liability)
of PagerDuty, its Affiliates and suppliers, for any claim arising from
Customer’s use of Pre-Release Technology will not exceed one-thousand U.S.
dollars ($1,000 USD). Any Feedback Customer provides with regards to
Pre-Release Technology is subject to Section 6.3 (*Feedback*) below.
**Support, Security and Privacy.**
*Support.* PagerDuty shall provide basic support as set forth in
the applicable Order Form and in accordance with the Support Policy
found at
https://www.pagerduty.com/support-policy/
for Hosted Services and at
https://www.rundeck.com/support-policy
for On Prem Services (or such other location as PagerDuty may designate
in the future).
Customer will be entitled to Service Credits for the Hosted Services pursuant to the Service Level Agreement (“SLA”) located at https://www.pagerduty.com/standard-service-level-agreement/", if the applicable Service(s) fail to meet the availability and response targets set forth in the SLA.
*Protection of Contact Information. *PagerDuty shall maintain
industry-standard administrative, physical, and technical safeguards for
protection of the security, confidentiality, and integrity of Contact
Information. These shall include, but may not be limited to, the
protections set forth in the Data Security Policy, available at
https://www.pagerduty.com/data-security-policy.
Each party agrees to comply with the applicable terms of the
PagerDuty Data Processing Addendum, available at
https://www.pagerduty.com/data-processing-addendum
(“**DPA**”), which is incorporated by reference and which
PagerDuty may update from from time to time.
*Customer Responsibilities for Contact Persons*. Customer shall
(i) obtain and maintain consents from each Contact Person to receive
messages from the Hosted Services, including without limitation SMS
messages (“**Messaging**”), (ii) maintain procedures for
each Contact Person to opt out of participating in Messaging, and once
opted-out, Customer will not re-subscribe a Contact Person to Messaging
until Customer has obtained renewed consent from such Contact Person to
receive Messaging through the Hosted Services, and (iii) comply with all
applicable law relating to Messaging in its use of the Hosted Services.
Customer shall be responsible for compliance with Messaging laws.
*Statistical Data. *Customer acknowledges and permits PagerDuty
to compile and use statistical or aggregate, non-personally-identifiable
information about Customer’s Users, and Contact Persons’ use of the
Services, including without limitation the types and number of
Incidents, number of alerts, and other metadata, for industry analysis,
benchmarking, analytics, marketing, promotional purposes, and to improve
or enhance the Services; provided, however, that such use will not in
any manner include Contact Information or otherwise identify Customer or
any Users. PagerDuty owns all right, title, and interest in and to such
derived anonymous data; provided, that Customer retains all right,
title, and interest in and to any underlying customer data.
**Proprietary Rights.**
*Customer Intellectual Property*. Customer 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 PagerDuty
any right of ownership or interest in the Contact Information other than the
limited license set forth herein. Customer agrees to provide PagerDuty with
reasonable access to Customer materials, systems, and personnel as reasonably
necessary for PagerDuty’s provision of Professional Services.
*PagerDuty Intellectual Property*. As between Customer and PagerDuty,
PagerDuty shall retain all right, title, and interest in and to the PagerDuty
Intellectual Property, and any changes, derivatives, corrections,
developments, bug fixes, enhancements, updates, and other modifications and
improvements thereto (each, a **“Work”**), and as between the Parties all such
rights shall vest in and be assigned to PagerDuty, whether as part of
PagerDuty’s performance of the Professional Services or otherwise. Nothing in
this Agreement will confer on Customer any right of ownership or interest in
any PagerDuty Intellectual Property, other than the limited license set forth
in Section 2.1. For the avoidance of doubt, any Work(s) that may result from
Professional Services shall remain PagerDuty Intellectual Property, and
PagerDuty shall have the sole right to: (i) all applications, registrations,
and rights to make applications and registrations of the Work; (ii) all
renewals, extensions, reversions, or restorations of any Work(s); (iii) all
goodwill associated with the Work; (iv) all rights corresponding to each of
the foregoing throughout the world, including but not limited to the right to
duplicate, reproduce, copy, distribute, publicly perform, display, license,
adapt, or prepare derivative works from the Work; (v) all causes of action for
infringement based on the Work or for other violations of any of the
foregoing; and (vi) all income, royalties, damages, claims, and payments now
or hereafter due or payable with respect to any Work(s).
*Feedback*. PagerDuty encourages Customer to provide suggestions,
proposals, ideas, recommendations, or other feedback regarding improvements to
the Service(s) and related resources (**“Feedback”**). To the extent Customer
provides Feedback, Customer grants PagerDuty a non-exclusive, royalty-free,
fully paid, sub-licensable, transferable, irrevocable, perpetual, worldwide
right and license to use and incorporate into the Service(s) any Feedback.
**Fees, Payment Terms and Renewals.**
*Fees and Payment Terms. *Customer will pay PagerDuty the fees as
set forthin the applicable Order Form (the “**Fees**”). Except as set
forth in the applicable Order Form, Customer will pay all Fees in
accordance with the following: (a) Service(s) Fees are invoiced annually
in advance; (b) the first invoice will coincide with the Order Form
start date; (c) payment will be due within thirty (30) days from the
date of the invoice, and (d) all amounts will be denominated and paid in
the currency set forth in the applicable Order Form. . Upon execution by
Customer and PagerDuty, each Order Form is non-cancellable and
non-refundable except as otherwise provided in this Agreement or in an
applicable Order Form.
*Renewals.*
*Hosted Services. *At the end of each Hosted Services Subscription
Term, the associated order shall automatically renew for the same Subscription
Term as the immediately preceding term, at the prices communicated to Customer
at least sixty (60) days prior to the end of that Hosted Services Subscription
Term. In the event no notice of a price increase is provided, the associated
order will renew at the same pricing for the applicable Services for the
applicable renewal term. All automatic renewals will be for a minimum twelve
(12) month Subscription Term, excluding month-to-month customers who have
purchased via PagerDuty’s online self-serve portal. Customer must provide thirty
(30) days notice prior to an auto-renewal date of intent to downgrade or not
renew Services by sending a notice to renewals@pagerduty.com. PagerDuty will
send the Hosted Services renewal notice to the contact email listed on the
account unless Customer notifies PagerDuty to use another email contact with
Customer’s account.
*On Prem Services. *On Prem Services orders will not automatically
renew upon the expiration of an On Prem Services Subscription Term. Upon the
expiration of orders for On Prem Services hereunder, such On Prem Services
orders will automatically terminate unless renewed by mutual agreement of the
Parties. In the event of such expiration, Customer’s access to and use of the
On Prem Services will terminate.
*Taxes. *Except for those taxes based on PagerDuty’s net income,
real property, or payroll, Customer will be responsible for all
applicable taxes in connection with this Agreement, including but not
limited to sales, use, excise, value-added, goods and services,
consumption, and other similar taxes or duties
(**“Taxes”**). Should any payment for the Service(s) or
Professional Service(s) be subject to withholding tax by any government,
Customer will reimburse PagerDuty for such withholding tax. If Customer
is exempt from any such Taxes for any reason, PagerDuty will exempt
Customer from such Taxes on a going-forward basis once Customer delivers
a duly executed and dated valid exemption certificate to PagerDuty’s tax
department and PagerDuty’s tax department has approved such exemption
certificate. Such exemptions should be sent directly to PagerDuty at
accountsreceivable@pagerduty.com. If for any reason a
taxing jurisdiction determines that Customer is
not exempt from any such exempted Taxes and then assesses PagerDuty such
Taxes, Customer agrees to promptly pay to PagerDuty such Taxes plus any
applicable interest or penalties assessed. Customer hereby confirms that
PagerDuty can rely on the ship-to name and address set forth in the
Order Form(s) as being the place of supply for Tax purposes.
*Invoice Disputes. *Customer will notify PagerDuty in writing in
the event Customer disputes any fees or Taxes paid or payable by
Customer under this Agreement prior to the due date of the applicable
invoice. Customer agrees to work in good faith and cooperate with
PagerDuty to resolve the applicable dispute promptly. Any dispute by
Customer must be based on a reasonable belief that the applicable Fees
were improperly assessed. Customer will pay all amounts determined to be
payable by resolution of the dispute within ten (10) days following such
resolution.
*Purchase Orders. * Notwithstanding any language to the contrary
therein, no terms or conditions stated in a Customer purchase order,
vendor onboarding process or web portal, or any other Customer order
documentation (excluding Order Forms) shall be incorporated into or form
any part of this Agreement, and all such terms or conditions shall be
null and void*. *If Customer issues a purchase order, then it
shall be for the full amount set forth in the applicable Order Form.
Upon request, PagerDuty shall reference the purchase order number on its
invoices, provided, however, that Customer agrees that a failure to
issue a purchase order or provide PagerDuty with the corresponding
purchase order shall not relieve Customer of its obligations to provide
payment to PagerDuty pursuant to Section 7.1 above.
*Failure to Pay. *Unpaid invoices are subject to a finance charge
of 1% per month on any outstanding balance, or the maximum permitted by
law, whichever is lower, plus all expenses of collection including
reasonable attorneys’ fees and costs. If any charge owing by Customer
(excluding amounts subject to Section 7.4) is overdue, then without
limitation of any of its other rights or remedies, PagerDuty may suspend
performance of those Service(s) until PagerDuty receives all past due
amounts from Customer.
**Confidentiality**
*Definition of Confidential Information. *As used herein,
“**Confidential Information**” means all confidential
information disclosed by a Party (“**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. Confidential
Information of Customer shall include Contact Information. 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 will
use the same degree of care that it uses to protect the confidentiality
of its own confidential information of like kind, but no less than
reasonable care to: (i) not use any Confidential Information of the
Disclosing Party for purposes outside the scope of the Agreement; and
(ii) limit access of Confidential Information to employees, agents and
Affiliates who reasonably need to know such Confidential
Information for purposes of exercising Receiving Party’s rights or
fulfilling Receiving Party’s obligations under this Agreement, provided
that Receiving Party shall ensure that such employees, agents and
Affiliates are bound by obligations of confidentiality substantially the
same as the obligations set forth in this Confidentiality section.
Neither party will disclose the terms of this Agreement or any Order
Form to any third party other than its Affiliates, legal counsel or
accountants, without the other party’s prior written consent, provided
that a party that makes any such disclosure to its Affiliate, legal
counsel or accountants will remain responsible for such third party’s
compliance with this “Confidentiality” section. Notwithstanding the
foregoing, PagerDuty may disclose the terms of this Agreement and any
applicable Order Form to a contractor or third party to the extent
necessary to perform PagerDuty’s obligations under this Agreement, under
terms of confidentiality materially as protective as set forth herein.
*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 written notice of such compelled
disclosure (to the extent legally permitted) and provides reasonable
assistance, at the Disclosing Party's cost, if the Disclosing Party
wishes to contest the disclosure or otherwise seek protection for its
Confidential Information. The Receiving Party shall limit any disclosure
of Confidential Information pursuant to this Section 8.3 to the extent
necessary to strictly comply with the applicable request. Any disclosure
of Confidential Information pursuant to this Section 8.3 shall not
affect the confidential treatment of such disclosed Confidential
Information.
*Remedies*. Receiving Party agrees that a breach of this Section
8 may result in immediate and irreparable harm to the Disclosing Party
that money damages alone may be inadequate to compensate. Therefore, in
the event of such a breach, the Disclosing Party will be entitled to
seek injunctive and any other equitable relief, including but not
limited to a temporary restraining order, preliminary injunction, or
permanent injunction without the posting of a bond or other security.
**Indemnification**
*By PagerDuty*. PagerDuty shall defend, indemnify, and hold
harmless Customer and its officers, directors, employees and agents from
and against all third-party claims, suits, actions, damages,
settlements, losses, liabilities, costs (including without limitation
reasonable attorney’s fees) and expenses arising from any infringement,
misappropriation or violation of any third-party patent, trademark,
copyright or other intellectual property right by the Service(s)
(“**Infringement Claims**”). If PagerDuty receives
information or otherwise believes that any portion of the Service(s) may
be subject to such an Infringement Claim, then PagerDuty may, at its
sole option and expense: (A) procure for Customer the right to continue
using the Service; (B) modify or replace the allegedly infringing
portions of the Service(s) to allow for continued use, or (C) if these
alternatives are not commercially reasonable, refund any unused, prepaid
Fees and terminate this Agreement. Notwithstanding the foregoing,
PagerDuty’s indemnification obligations set forth herein, do not apply
to, and PagerDuty will have no obligation to Customer for, any claim
that arises from (i) modifications to the Service(s) by anyone other
than PagerDuty, (ii) modifications to the Service(s) based upon
specifications furnished by Customer, (iii) Customer’s and/or any of its
Users’ use of the Service(s) other than as specified in this Agreement,
the Order Form or in the applicable Documentation, (iv) use of the
Service(s) in conjunction with third-party software, hardware or data
other than that approved by PagerDuty, or (v) any combination of the
foregoing.
*By Customer*. Customer shall defend, indemnify and hold harmless
PagerDuty and its officers, directors, employees and agents from and
against all third-party claims (including any Contact Persons), suits,
government investigations, fines, actions, damages, settlements, losses,
liabilities, costs (including without limitation reasonable attorney’s
fees) and expenses arising from related to Customer’s failure to comply
with its obligations under Section 5.4 of this Agreement or its failure
to secure required consents or otherwise protect the privacy of Contact
Information under this Agreement.
*Indemnification Procedures*. As a condition to being indemnified
under this Section, the Party seeking indemnification shall: (i)
promptly notify the indemnifying Party of the Claim; (ii) allow the
indemnifying Party sole control of the defense and settlement of the
Claim; and (iii) provide reasonable assistance, at the indemnifying
Party’s expense, in defending or settling the Claim. The indemnifying
Party shall (a) keep the indemnified Party informed of and consult with
the indemnified Party in connection with the progress of such litigation
or settlement and (b) not settle any such Claim in a manner that does
not unconditionally release the indemnified Party without the
indemnified Party’s written consent, not to be unreasonably withheld or
delayed.
*THIS SECTION 9 STATES THE INDEMNIFYING PARTY’S ENTIRE LIABILITY TO
THE INDEMNIFIED PARTY FOR THE INDEMNIFIABLE CLAIMS SET FORTH
HEREIN.
**Warranties; Disclaimers.**
*Hosted Services*. PagerDuty warrants that during an applicable
Subscription Term (i) the Agreement, the Order Form and the
Documentation will accurately describe the applicable administrative,
physical and technical safeguards of the security and confidentiality of
the Hosted Services; (ii) the Hosted Service(s) will operate in
accordance with the SLA, provided that the sole remedy for breach of
this warranty or failure of the Hosted Services to perform shall be the
remedies set forth in the SLA; and (iii) PagerDuty shall not materially
decrease the overall security of the Hosted Services during an applicable Subscription Term
and the Hosted Services shall perform materially in accordance with the
applicable Documentation. For any breach of warranty in subsection (i)
and (iii), Customer’s exclusive remedies are those described in the
“Termination” section below.
*On Prem Services*. PagerDuty warrants for the first ninety (90)
days following download or other delivery that the On Prem Services will
operate in all material respects in substantial conformance with the
Documentation when used in normal operating conditions in accordance
with the terms and conditions of the Agreement. Customer’s exclusive
remedy for breach of this warranty is to notify PagerDuty in writing in
reasonable detail of the non-conforming aspect of the On Prem Services,
and upon receipt of such notice, PagerDuty, at its option, will either
use commercially reasonable efforts to modify and provide an update to
the On Prem Services so that it is in conformance with this warranty
requirement, or provide a commercially reasonable work-around within a
reasonable period of time. Notwithstanding any other provision of the
Agreement, this Section 10.2 sets forth Customer’s exclusive rights and
remedies and PagerDuty’s sole liability in connection with the warranty
related to the performance of the On Prem Services.
*Professional* *Services*. PagerDuty warrants to Customer
that any Professional Services purchased will be performed in a
competent and workmanlike manner in accordance with accepted industry
standard practice and the terms and conditions herein. Customer’s
exclusive remedy for breach of this warranty is to notify PagerDuty in
writing within thirty (30) days of the non-conforming Professional
Services. Upon receipt of such notice, PagerDuty, at its option, 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
Customer the prorated amount of fees for the unperformed and
non-conforming Professional Services. This Section 10.3 sets forth
Customer’s exclusive rights and remedies and PagerDuty’s sole liability
in connection with the warranty related to the performance of the
Professional Services.
Customer represents and warrants that Customer shall comply with the
obligations of Section 5.4 (*Customer Responsibilities for Contact Persons*) and not violate any
Messaging laws in Customer’s use of the
Service(s).
EXCEPT FOR THE FOREGOING, PAGERDUTY PROVIDES THE SERVICE “AS IS” WITHOUT
ANY WARRANTY WHATSOEVER. PAGERDUTY HEREBY DISCLAIMS ALL REPRESENTATIONS
AND WARRANTIES WITH RESPECT TO THE SERVICE, EITHER EXPRESS OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, RELIABILITY, ACCURACY OR ACHIEVEMENT OF
RESULTS.
**Limitation of Liability.**
*General Limitation of Liability*. NEITHER PARTY’S LIABILITY
ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL EXCEED THE
AMOUNTS PAID TO PAGERDUTY BY CUSTOMER HEREUNDER IN THE TWELVE-MONTH
PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY
(“**CAP**”). WITHOUT LIMITING THE FOREGOING, PAGERDUTY
SHALL HAVE NO LIABILITY FOR ANY FAILURE OF THE SERVICE ARISING FROM OR
RELATED TO (i) CUSTOMER’S OR ITS USERS’ FAILURE TO CONFIGURE THE SERVICE
IN CONFORMANCE WITH THE DOCUMENTATION, (ii) CUSTOMER’S OR ITS USERS’
FAILURE TO PROVIDE ACCURATE CONTACT INFORMATION TO THE SERVICE, OR (iii)
ANY MESSAGING LAWS.
*Disclaimer of Consequential and Other Damages*. NEITHER PARTY
SHALL BE LIABLE HEREUNDER TO THE OTHER UNDER ANY THEORY, WHETHER IN
CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, FOR ANY SPECIAL,
INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR LOST DATA OR PROFITS,
WHETHER OR NOT FORESEEABLE.
**Term and Termination.**
*Term of Agreement. *This Agreement commences on the Effective
Date shown in the applicable Order Form and continues for the Term
indicated in the Order Form, or until all User subscriptions have
expired or been terminated, whichever is longer (the
“**Term**”).
*Termination for Cause. *A Party may terminate this Agreement for
cause: (i) 30 days following written notice to the other Party of a
material breach if such material breach remains uncured at the
expiration of such 30-day period, or (ii) if the other Party becomes the
subject of a petition in bankruptcy or any other proceeding relating to
insolvency, receivership, liquidation or assignment for the benefit of
creditors. Upon any termination for cause by PagerDuty, Customer shall
pay any unpaid Fees for the remainder of the then current Term. Upon any
termination for cause by Customer, PagerDuty will refund any prepaid
fees covering the remainder of the applicable Subscription Term(s) after
the effective date of termination.
*Events on Termination. *Upon termination of this Agreement for
any reason: (i) each Party will promptly cease all use of and return or
destroy the other’s Confidential Information (at the disclosing Party’s
discretion) and promptly provide written confirmation of such return or
destruction upon request of the other Party, (ii) PagerDuty will
terminate access of Customer and its Users to the Service, and (iii)
Customer will promptly, but in no event later than 15 days after
termination, pay in full all Fees due prior to termination. The Sections
titled “Definitions”, “Fees and Payment Terms”, “Proprietary Rights”,
“Confidentiality”, “Support, Security and Privacy”, “Indemnification”,
“Limitation of Liability”, “Events on Termination”, “Reseller
Transactions”, “General” and any disclaimers contained in the Agreement
shall survive termination.
*Reseller Transactions. *If any of Customer’s purchases of the
Service(s) are made through an authorized reseller of PagerDuty
(“Reseller”):
Customer will pay any owed amounts to the Reseller, as agreed
between Customer and the Reseller. Customer agrees that PagerDuty
may suspend or terminate Customer’s use of the Service(s) if
PagerDuty does not receive its payment of Fees from the Reseller.
Customer may place an order through the Reseller or via the
self-service function in the Hosted Service(s). The Reseller will be
invoiced for any orders placed via self-service and will, in turn,
invoice Customer. The Reseller and Customer are responsible for the
accuracy of all orders placed.
Reseller may not modify this Agreement or make any commitments on
PagerDuty’s behalf. Only this Agreement governs PagerDuty’s
obligations to Customer.
The amounts paid by the Reseller to PagerDuty for Customer’s use of
the Service(s) under this Agreement will be deemed the amount
actually paid under this Agreement for purposes of calculating
PagerDuty’s liability under Section 11.1 (General Limitation of
Liability).
Purchases made through Resellers will not automatically renew.
Customer’s renewal pricing will be communicated to Customer by the
Reseller prior to the expiration of Customer’s Subscription Term.
Should Customer elect to continue purchasing Service(s) through the
Reseller, Customer will place a new order as set forth in Section
12.4(ii).
**General**
*Governing Law.*This Agreement shall be governed by and
interpreted in accordance with the laws of the state of California
without giving effect to its conflicts of law rules. Each of the Parties
to this Agreement consents to the exclusive jurisdiction and venue of
the state and federal courts of the City and County of San Francisco,
California.
*Arbitration*. 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 upon the parties. A judgment upon the
award rendered may be entered in any court having jurisdiction thereof.
Nothing in this Section shall be deemed as preventing PagerDuty from
seeking injunctive or other equitable relief from the courts as
necessary to prevent the actual or threatened infringement,
misappropriation, or violation of PagerDuty’s data security,
intellectual property rights or other proprietary or confidentiality
rights.
*Dispute Resolution*. In the event of a dispute under this
Agreement, the parties shall first attempt in good faith to resolve such
dispute informally, and except for applications of urgent relief, shall
refrain from initiating formal legal proceedings until the dispute has
been addressed through internal channels for at least thirty (30) days.
*Assignment. *Neither Party may assign, sublicense, delegate or
otherwise transfer any of its rights or obligations under this Agreement
without the prior written consent of the other Party. Notwithstanding
the foregoing, either Party may, without the consent of the other Party,
assign this Agreement to an Affiliate, or entity merging with,
consolidating with, or purchasing substantially all its assets or stock,
provided that the assignee shall assume all rights and obligations under
this Agreement. Any permitted assignment of this Agreement shall be
binding upon and enforceable by and against the Parties’ successors and
assigns, provided that any unauthorized assignment shall be null and
void and constitute a breach of this Agreement.
*Professional Services*. Professional Service(s) will be provided
as specified in an Order Form or statement of work, as applicable, and
will be governed by the Agreement. If Customer purchases Professional
Services, Customer will be responsible for certain obligations, and
acknowledge that failure to fulfill such obligations may result in a
delay in performance hereunder. Any such delay caused by Customer may
result in additional charges. If PagerDuty terminates the Professional
Services component of the Order Form for breach of this Section 13.5, no
refunds of Professional Services fees will be provided. Customer will:
(i) provide access as needed for PagerDuty to fulfill the Professional
Services; (ii) provide PagerDuty with reasonable support, including, for
example, access to facilities (as applicable), resources and employees,
and timely decisions or approvals as necessary for PagerDuty to complete
the tasks agreed to between the parties within ninety (90) days of the
Order Form Effective Date; and (iii) assign a project sponsor who will
serve as PagerDuty’s executive-level contact and who have full authority
to act on behalf of Customer with respect to: (a) making material
decisions related to the Professional Services; (b) identifying and
securing timely resources to perform responsibilities outlined in the
order, subsequent project resource plans, or roles and responsibilities
document; (d) being responsible for configuration of Customer’s
management systems to send Customer materials to PagerDuty; (e)
providing access to Customer’s directory service or a list of Users for
use in provisioning Users in PagerDuty’s Services; (f) providing a list
of Services and teams that Customer wishes to provision; and (g) working
with PagerDuty to create and provide escalation policies including
associated schedules.
*U.S. Government End Users.* If Customer is a branch or agency of
the United States Government, the following provision applies. The On
Prem Services contain “commercial computer software” as that term is
described in DFAR 252.227-7014(a)(1). If acquired by or on behalf of a
civilian agency, the U.S. Government acquires this commercial computer
software and/or commercial computer software documentation subject to
the terms of this Agreement as specified in 48 C.F.R. 12.212 (Computer
Software) and 12.11 (Technical Data) of the Federal Acquisition
Regulations and its successors. If acquired by or on behalf of any
agency within the Department of Defense, the U.S. Government acquires
this commercial computer software and/or commercial computer software
documentation subject to the terms of this Agreement as specified in 48
C.F.R. 227.7202 of the DOD FAR Supplement and its successors.
*Compliance with Export Control and Economic Sanctions Laws.*
Customer shall only use the Service in compliance with local laws and
regulations and will not export or re-export the Service in violation of
any United States or other applicable export laws and regulations.* *Customer represents and warrants
that Customer: (i) understands
that the On Prem Services and their components may be subject to export
controls under the U.S. Commerce Department's Export Administration
Regulations (“EAR”) and economic sanctions under the regulations
administered by the U.S. Treasury Department’s Office of Foreign Assets
Control (“OFAC”); (ii) is not located in a prohibited destination
country under the EAR or OFAC regulations, or an individual or entity on
the U.S. Consolidated Screening List maintained by the U.S.
International Trade Administration; (iii) will not export, re-export, or
transfer the Software to any prohibited destination or persons or
entities on the U.S. Consolidated Screening List, or any similar lists
maintained by other countries, without the necessary export license(s)
or authorization(s); (iv) will not use or transfer the On Prem Services
in connection with any nuclear, chemical or biological weapons, missile
technology, or military end-users or end-uses unless authorized by the
relevant government agency by regulation or specific license; (v)
understands and agrees that if Customer is in the United States and
exports or transfers the On Prem Services to eligible end users,
Customer will satisfy any applicable reporting requirements under the
EAR and OFAC regulations; (vi) understands that countries including the
United States may restrict the import, use, or export of encryption
products (which may include the On Prem Services and the components) and
agrees that Customer shall be solely responsible for compliance with any
such import, use, or export restrictions; and (vii) that Customer shall
comply with all applicable export, import, and trade laws with respect
to this Agreement. CUSTOMER WILL DEFEND, INDEMNIFY AND HOLD HARMLESS
PAGERDUTY FROM AND AGAINST ANY THIRD-PARTY CLAIMS RESULTING FROM A
VIOLATION OF THIS SECTION 13.7 BY CUSTOMER OR ANY OF ITS USERS, AGENTS,
OFFICERS, DIRECTORS, OR EMPLOYEES.
*Certification of Compliance for On Prem Services. *PagerDuty may
request and Customer shall promptly provide, Customer’s certification in
writing of compliance with applicable use restrictions, including but
not limited to any usage report generated by the On Prem Services. If
any such report discloses an underpayment of fees for the period under
review based on actual usage, then, without limiting PagerDuty’s
remedies, Customer agrees to promptly pay PagerDuty the amount of the
underpayment. This Section 13.8 (*Certification of Compliance*)
will survive termination or expiration of the Agreement for two (2)
years.
*Force Majeure.* Except for payment obligations, if either Party
is prevented from performing or is unable to perform any of its
obligations under this Agreement due to causes beyond the reasonable
control of the Party invoking this provision, including but not limited
to acts of God, acts of civil or military authorities, riots or civil
disobedience, wars, strikes or labor disputes (a “Force Majeure Event”),
such Party’s performance shall be excused and the time for performance
shall be extended accordingly provided that the Party immediately takes
all reasonably necessary steps to resume full performance.
*Future Functionality. *Customer agrees that its purchases
hereunder are neither contingent on the delivery of any future
functionality or features nor dependent on any oral or written public or
private comments made by PagerDuty regarding future functionality or
features. Customer acknowledges that no representative of PagerDuty has
authority to bind PagerDuty to any terms or conditions not expressly
stated in this Agreement, or the same as amended from time to time by a
mutually executed written amendment to the foregoing.
*No Third-Party Beneficiaries. *This Agreement shall not confer
any rights or remedies upon any Person other than the Parties and their
respective successors and permitted assigns.
*Severability. *If any provision of this Agreement shall be found
invalid or unenforceable, the remainder of this Agreement shall remain
in full force and effect and the affected provision shall be amended to
make it legal and enforceable while preserving its intent.
*Entire Agreement; Order of Precedence. *This Agreement,
including the Order Form, SLA and any exhibits hereto, constitutes the
entire understanding and agreement of the Parties with respect to its
subject matter and supersedes all prior and contemporaneous agreements
or understandings between the Parties, as well as terms in a pre-printed
document such as a purchase order, invoice, statement of work or the
like; any such terms shall be considered as proposed additions and are
hereby expressly rejected unless agreed to in a writing signed by
authorized representatives of both parties. Capitalized terms used
herein but not defined shall have the meaning set forth in the Order
Form. In the event of a conflict between an Order Form and this
Agreement, the terms of the Order Form shall supersede the terms of this
Agreement.
*Modification. *PagerDuty reserves the right, in its sole
discretion, to modify or replace any part of this Agreement by (i)
posting a revised Agreement on PagerDuty’s website or (ii) providing
notice to Customer 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 then-current prepaid Subscription Term for
all other plans.
*Waiver. *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.
*Export Control.* Customer shall only use the Service in compliance with local laws and regulations, and will not export or re-export the Service in violation of any United States or other applicable export laws and regulations.
*Relationship of Parties*. 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 to incur any obligation on its
behalf.
*Headings. *The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the
meaning or interpretation of this Agreement.
*Construction. *Any reference to any federal, state, local, or
non-U.S. statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires
otherwise. The word *including* shall mean including without
limitation. Any of the terms defined in this Agreement may, unless the
context otherwise requires, be used in the singular or the plural,
depending on the reference.
*Notices*. All notices related to this Agreement shall be in
writing and will be effective upon: (a) personal delivery; (b) the
second business day after mailing; or (c) the date of sending by email,
except for notices of termination of an indemnifiable claim (“**Legal Notice**”). Legal Notices
to PagerDuty shall be addressed to General Counsel,
PagerDuty, Inc., 600 Townsend Street #200, San Francisco, California
94103 and clearly identified as Legal Notice. Legal Notices to Customer
shall be sent to the address set forth in the preamble above and clearly
identified as a Legal Notice. Billing related notices to Customer will
be addressed to the relevant billing contact designated by Customer. All
other notices to Customer will be sent to the relevant Services system
administrator designated by Customer.www.pagerduty.com
Terms of Service
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