PAGERDUTY ONE-TIME RESELLER AGREEMENT
TERMS AND CONDITIONS

PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY.

THIS PAGERDUTY ONE-TIME RESELLER AGREEMENT TOGETHER WITH THE, PAGERDUTY CHANNEL PROGRAM GUIDE AND THE APPLICABLE ORDER FORM CONSTITUTES THE LEGAL BINDING AGREEMENT BETWEEN PAGERDUTY, INC. AND THE ABOVE NAMED RESELLER PARTNER ("PARTNER"). BY ENTERING INTO A CONTRACT TO RESELL THE PAGERDUTY SERVICES, PARTNER (A) ACKNOWLEDGES THAT PARTNER HAS READ AND UNDERSTANDS THIS AGREEMENT; (B) REPRESENTS AND WARRANTS THAT PARTNER HAS THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT; AND (C) ACCEPTS THIS AGREEMENT AND AGREES THAT PARTNER IS LEGALLY BOUND BY ITS TERMS.

IF PARTNER DOES NOT AGREE WITH THE TERMS PARTNER SHOULD NOT INDICATE ACCEPTANCE AND PARTNER MUST NOT RESELL THE PAGERDUTY SERVICES.

NOW, THEREFORE in consideration of these mutual consideration recited herein, the Parties agree as follows:

  1. DEFINITIONS. Capitalized terms not defined herein have the meaning set forth in the Order Form.
    1. "Applicable Law" or "Law" means, for all countries, all national, federal, state, provincial and local: (i) laws (including common law), ordinances, regulations, and codes; and (ii) orders, requirements, directives, decrees, decisions, judgments, interpretive letters, guidance and other official releases of any regulator that are applicable to PagerDuty and Partner, Partner product and services or any other matters relating to the subject matter of this Agreement. Without limiting the foregoing, Applicable Law includes; (a) all data protection, privacy or similar laws and regulations anywhere in the world applicable to persons in possession of Personal Data, or to the processing of Personal Data; (b) any bribery, fraud, kickback or other similar anti-corruption law or regulation of any applicable country including the U.K. Bribery Act and the U.S. Foreign Corrupt Practices Act and the regulations promulgated thereunder; and (c) United States import and export control and sanctions laws with respect to the import/export or re-import/export of U.S.-origin goods, software and technical data, or the direct product thereof.
    2. "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.
    3. "Agreement" means this PagerDuty One-Time Reseller Agreement together with the PagerDuty Channel Partner Program Guide and the Order Form.
    4. "Customer" means the entity set forth above that matches the entity set forth in the Order Form that purchases the Services from Partner for Customer's own productive use and not for re-distribution or resale.
    5. "Marks" mean a Party's name, trademarks, logos and services marks.
    6. "Opportunity" means a Customer the Partner is actively engaging at the time of the Partner's PagerDuty Opportunity Registration.
    7. "Order Form" means the PagerDuty order form submitted by Partner to PagerDuty for the purchase of Services for the Customer and is governed by this PagerDuty One-Time Reseller Agreement, the Program Guide, and the terms and conditions set forth in the Order Form.
    8. "PagerDuty Channel Partner Program Guide" or "Program Guide" means the then-current PagerDuty Channel Partner Program Guide that may be amended from time to time by PagerDuty at PagerDuty's discretion and includes other documentation and supplemental materials that PagerDuty may provide to Partner that at the time of distribution is designated as part of the Program Guide. The Program Guide and all documentation provided thereto are PagerDuty's Confidential Information. Partner is expressly prohibited from disclosing the Program Guide to any third party, including without limitation any Customer.
    9. "PagerDuty Terms of Service" means the terms, conditions, and license (i) for PSPP at https://www.pagerduty.com/service-terms-use/ and (ii) for PPOP at https://www.rundeck.com/enterprise-license allowing the Customer to use the Services set forth in the Order Form, which URL location and content may be updated from time to time by PagerDuty.
    10. "PagerDuty Products for On-Premises” or “PPOP” means PagerDuty products that Customer purchases via a subscription for software to be used by Customer on Customer's premises or installed on a Customer-controlled computing infrastructure for Customer own internal business use as set forth in the PagerDuty Terms of Service.
    11. "PagerDuty SaaS Platform Products” or “PSPP” means PagerDuty products that are accessed via the PagerDuty cloud servers.
    12. "Personal Data" means personal information about an identifiable person obtained by Partner in connection with its obligations under or otherwise pursuant to this Agreement or Program Addendum, including without limitation any such personal information about a Customer or their personnel
    13. "Services" means PPOP, PSPP and any applicable support or professional services performed by PagerDuty as detailed in a statement of work, or any other written form agreed to by the Parties and signed by their authorized representatives ("Professional Services"), and as set forth in the Order Form.
  2. ONE-TIME APPOINTMENT.
    1. Subject to Partner's compliance with the terms and conditions of this Agreement, PagerDuty grants Partner a one-time, non-exclusive, non-transferable, and non-sublicensable right to resell the PagerDuty Services to the Customer, solely for use by such Customer in accordance with the PagerDuty Customer Terms. This right to resell does not apply to any other end user or services or products (including without limitations any sale to any related, organization or affiliate, or to any subsequent, additional or renewal sales to the same Customer). Partner may only resell Services the Partner purchases directly from PagerDuty and may not resell Services indirectly through a third party to a Customer.
    2. The Parties agree that this Agreement is non-exclusive and neither Party will be prevented from entering into similar arrangements with other parties. Nothing set forth herein will interfere with PagerDuty's relationship with a PagerDuty existing Customer or prohibit PagerDuty from a direct relationship with a Customer in the future.
  3. OPPORTUNITY REGISTRATION. Partner must submit a one-time sales Opportunity registration to PagerDuty through Partner's PagerDuty contact, as set forth in the Program Guide to be registered and approved in advance prior to submitting an Order Form in order to avoid channel conflict. PagerDuty shall respond to the opportunity by either classifying the opportunity as a resale transaction, or rejecting the opportunity. If the opportunity is approved by PagerDuty, PagerDuty will also provide Partner with a quote, and any other information that PagerDuty deems appropriate, including the timing for which the quote will be honored. If no other timing or date is given, the approval for the resale transaction will expire, along with the quote, ninety (90) days from when PagerDuty responds. Order Forms submitted where Partner has not registered the Opportunity will be provided at the lowest Partner discount rate where no other PagerDuty channel partner has registered the Opportunity. Where another Partner has registered the Opportunity, certain rules will apply as set forth in the Program Guide. Partner acknowledges and agreesthe submission of the Opportunity for registration or Order Form may require Partner to submit certain financial information to PagerDuty to establish Partner's financial viability and creditworthiness to PagerDuty's satisfaction. Requests for Partner financial information from PagerDuty will be in writing (email accepted) and all financial information provided by Partner will be Partner's Confidential Information subject to the protections hereunder. Notwithstanding anything to the contrary, PagerDuty may refuse to sell PagerDuty Services to Partner or a Customer in its sole discretion.
  4. PARTNER RESPONSIBILITIES.
    1. PagerDuty Customer Terms. Prior to submitting an Order Form to PagerDuty, Partner agrees that it must (i) provide Customer with a copy of or link to PagerDuty Terms of Service prior to delivery of the Services by PagerDuty; (ii) notify Customer that its use of the Services is governed by the terms and conditions of the PagerDuty Terms of Service; and (iii) include either a copy of or link to the PagerDuty Terms of Service in each ordering agreement entered into by and between Partner and the Customer.
    2. Quote and Pricing. PagerDuty will provide a quote for Partner's fee for the Services. If Partner is not provided a quote at the time of the Opportunity Registration then Partner must call PagerDuty for a request for quote as set forth in the Program Guide.Partner may set the price at which it offers Services to the Customer at its sole discretion.
    3. Compliance With Agreement.Partner will at all times comply with the terms and conditions of this Agreement as comprised of this PagerDuty One-Time Reseller Agreement, Program Guide and Order Form.In the event of a conflict between PagerDuty One-Time Reseller Agreement, Program Guide and Order Form, the following precedence with apply: the Order Form, Program Guide, and lastly, the PagerDuty One-Time Reseller Agreement.
    4. Restrictions.Partner will not, nor permit any third party to (i) make any representations, incur obligations or otherwise act on behalf of PagerDuty in any way other than as explicitly set forth in this Agreement, (ii) interfere with or disrupt the integrity or performance of the Services, (v) use the Services for the benefit of any third party including use of the Services to operate as a service bureau, ASP, or hosting service, (vi) attempt to gain unauthorized access to the Services, or their related systems or networks, (vii) access, or permit access, to the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes, and/or (viii) access or use the Services in order to (A) build a competitive product or service, (B) copy any features, functions or graphics of, or data or information in, the Services.
  5. PagerDuty RESPONSIBILITIES.
    1. Provide and support the Services to Customer in accordance with the terms of the PagerDuty Customer Agreement entered into by PagerDuty with the Customer.
    2. Provision and invoice Partner for the Services set forth in the accepted Order Form.
  6. ORDER FORM. As part of Partner's submission of an Order Form, Partner accepts the terms and conditions of this Agreement and shall ensure Customer has agreed to the PagerDuty Terms of Service.
  7. PAYMENT; TAX; AUDITS.
    1. Invoice and Payment. Partner will pay all fees specified in the Order Form. Upon acceptance of the Order Form, PagerDuty will invoice Partner for the fees in USD for the Services and unless otherwise agreed in the Order Form, all PagerDuty invoices are payable no later than thirty (30) days from the date of the invoice. All fees payable under this Agreement are non-cancelable and non-refundable and must be made without recoupment or set-off. Partner is responsible for collecting payment from the Customer and will bear all credit risk in connection with payments from such Customer. If any fees are not received from Partner by the due date, then at PagerDuty's discretion, such charges may accrue interest at the monthly rate of the lower of 1.5% of the outstanding balance, or the maximum rate permitted by law, from the date such payment was due until the date paid. If any amount owing by Partner pursuant to this Agreement is thirty (30) or more days overdue, PagerDuty may, without limiting PagerDuty's other rights and remedies, suspend provision of any Services and/or Customer's access to the Services until such amounts are paid in full.
    2. Taxes. Unless otherwise stated, PagerDuty's fees do not include any taxes, levies, duties, or similar governmental assessments, including value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). Except for taxes assessable against PagerDuty based on PagerDuty's income, Partner is responsible for paying all Taxes associated with Partner's purchases hereunder. If PagerDuty has the legal obligation to pay or collect Taxes for which Partner is responsible under this paragraph, the appropriate amount will be invoiced to and paid by Partner as set forth above, unless Partner provides PagerDuty with a valid tax exemption certificate authorized by the appropriate taxing authority.
    3. Records. Partner agrees to maintain complete and accurate records in accordance with generally accepted accounting principles with respect to matters necessary to ensure Partner's compliance with this Agreement, including but not limited to, ensuring Customer has agreed to the PagerDuty Terms of Service prior to the Services being made available to Customer. PagerDuty will have the right, at its own expense and upon reasonable prior notice, to periodically inspect and audit the records of Partner and of Customer with respect to matters covered by this Agreement. If an inspection and audit reveal that Partner has underpaid PagerDuty with respect to any amounts due and payable during the period to which such inspection and audit relate, Partner will promptly pay such amounts as are necessary to rectify such underpayment, together with interest as set forth above. Such inspection and audit rights will extend throughout the term of this Agreement and for a period of 3 years thereafter.
  8. DELIVERY; RENEWALS
    1. Delivery. Upon receipt of a fully executed Order Form, PagerDuty will deliver the Services via electronic means to Customer in accordance with PagerDuty's then-current delivery processes and procedures for end user customers.
    2. Renewals.
      1. In order for Partner to be eligible to submit an Order Form for renewal of the Services ordered under this Agreement, Partner must enter into a Master Partner Agreement and Resell Addendum or a new One-Time Reseller Agreement with PagerDuty prior to the expiration of said Services. If Partner has not entered any of the foregoing agreements, or if a Customer approaches PagerDuty directly for Services, nothing set forth in this Agreement will prohibit PagerDuty from entering into a direct relationship with such Customer.
      2. Permitted renewals of the Services will be subject to the then-existing Customer Terms of Service at renewal. Notices to the Customer for renewals are set forth in the Program Guide.
  9. TERM AND TERMINATION.
    1. Term. This Agreement will begin on the date of the applicable Order Form accepted by PagerDuty ("Partner Acceptance"). This Agreement will be in effect from the date of Partner Acceptance and automatically terminate upon (i) delivery of the Services to Customer by PagerDuty and (ii) payment for the Services by Partner, provided however PagerDuty may terminate this Agreement upon five (5) days notice to Partner for a material breach of this Agreement or Partner's insolvency.
    2. Effect of Termination.
      1. Upon expiration or termination of this Agreement (“Expiration”), provided Partner has paid for the Services set forth in the Order Form and as invoiced by PagerDuty, PagerDuty and Partner will continue to provide service and support for the Customers using the Services as of the date of Expiration, that have a license or subscription that continues beyond the date of Expiration (the “Post Term Services Period”), however the Parties obligations set forth herein will only apply up to the end of the Post Term Services Period. For purposes of clarity only, Partner may not extend a Customer’s Services license or subscription beyond the end of the Post Term Services Period without PagerDuty’s prior written consent.
      2. Survival. The rights and obligations of the Parties contained in Sections 1, 2.1, 4.4, 7, 8.2, 9.2, 10, 11, 12, 13, 14, 15, and 16 will survive any expiration or termination of this Agreement.
  10. INTELLECTUAL PROPERTY
    1. Ownership. Partner acknowledges that PagerDuty and its third party licensors own the intellectual property rights associated with the Services. Except for the rights expressly granted in this Agreement, PagerDuty nor its third party licensors transfers its intellectual property rights in its Services to Partner, any Customer, or other third party and PagerDuty and its third party licensor's retain sole ownership of all rights, title and interest, including without limitation intellectual property rights, in and to the Services.
    2. No Implied Licenses. Except for the license to Marks set forth in Section 10.3 (Marks License and Use) below, the Services are provided under the express terms of the licenses granted in a PagerDuty Terms of Service. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel or otherwise, to Partner or any third party any intellectual property rights or other right, title or interest in or to Services. All rights not granted are expressly reserved by the PagerDuty and its third party licensors acting as a licensor. All uses in this Agreement of the terms "sell," "sale," "resell," "resale," "purchase," "price," and the like mean the purchase or sale of a license.
    3. Marks License and Use.
      1. PagerDuty Marks. Subject to the terms and conditions of this Agreement, PagerDuty grants to Partner a one-time, limited, non-exclusive, non-transferable (without right to sublicense), revocable license during the Term to use PagerDuty’s Marks solely for the purpose of accomplishing and closing the resale one-time transaction under this Agreement. Partner acknowledges and agrees that PagerDuty owns the Marks and that any and all goodwill derived from the use of the Trademarks by Partner hereunder inures solely to the benefit of PagerDuty. Partner will not register any domain names using any PagerDuty Marks as part of the domain name. PagerDuty’s Mark usage guidelines are set forth at https://www.pagerduty.com/brand/.
      2. Partner Marks. Partner hereby grants to PagerDuty a limited, non-exclusive, non-transferable (without right to sublicense), revocable license during the Term to use Partner’s Marks for purposes of this Agreement and to list Partner as a reseller of PagerDuty Services on PagerDuty’s website and other marketing material. PagerDuty acknowledges and agrees that Partner owns the Partner Marks and that any and all goodwill derived from the use of the Partner Marks by PagerDuty hereunder inures solely to the benefit of Partner. PagerDuty will not register any domain names using the Partner Marks as part of the domain name.
  11. REPRESENTATIONS AND WARRANTIES.
    1. Mutual Representation and Warranties. Each Party represents, warrants and covenants to the other Party that (a) it is duly organized, validly existing and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization; (b) it has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses and authorizations it grants and is required to grant under this Agreement; (c) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such Party; (d) when executed and delivered by both Parties, this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms, and (d) it will not pass on representations and warranties of the other Party.
    2. Partner Representation and Warranties. Partner represents, warrants and covenants to PagerDuty that (i) it will not represent itself as an agent or employee of PagerDuty and agrees that PagerDuty has primary control over any communications with Customer regarding the Services, (ii) Partner will not make any representations regarding PagerDuty or the Services except as expressly permitted in the Agreement, and (iii) Partner will not engage in any deceptive, misleading, illegal or unethical practices that may be detrimental to PagerDuty or its Services, and agrees to comply with all applicable federal, state and local laws and regulations while performing its duties under this Agreement.
    3. PagerDuty Representation and Warranties. PagerDuty warrants that (i) the personnel providing any Professional Services will have the requisite, skill, competence, and experience to provide the Professional Services; and (ii) the Professional Services will be delivered in workmanlike manner consistent with the standards of the industry.
    4. DISCLAIMER. PAGERDUTY SERVICES, DOCUMENTATION, INFORMATION, AND MATERIALS ARE PROVIDED "AS IS", "WHERE IS" AND "WITH ALL FAULTS". PAGERDUTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, PAGERDUTYMAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, DOCUMENTATION AND OTHER PRODUCTS, INFORMATION, AND MATERIALS PROVIDED OR RESULTS OF THE USE THEREOF, WILL MEET A PARTY'S OR OTHER PERSONS' REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEMS, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. FURTHERMORE, SERVICES AND OTHER MATERIALS MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, AND PAGERDUTY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS Some jurisdictions may not allow the exclusion of implied warranties or limitations on how long an implied warranty may last, so the above limitations may not apply. In that case such warranties are limited in duration to the minimuM period required by law.No warranties apply after that period. A party may have other rights that vary from jurisdiction to Jurisdiction
  12. 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 each Party will include the terms and conditions of this Agreement, as well as business and marketing plans, research, development, services, customers, customer lists, designs, drawings, technology and technical information, products, software, developments, inventions, processes, formulas, finances, and business processes of such Party; and PagerDuty's Confidential Information will include the Services related documentation and specifications as well as any other material delivered or made available to Partner. However, Confidential Information will 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 known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party without use of or access to the Disclosing Party's Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party will use the same degree of care that it uses to protect its own confidential information of like kind (but in no event less than reasonable care) not to disclose any Confidential Information of the Disclosing Party or use it for any purpose outside the scope of this Agreement, and (ii) the Receiving Party will limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement, who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein, and for whom the Receiving Party remains fully liable. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior written notice of any such disclosure (to the extent not legally prohibited) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. Each Party acknowledges that the extent of damages in the event of any threatened or actual breach of this Section 12 (Confidential Information) would be difficult or impossible to ascertain and that there would be available no adequate remedy at law in the event of any such breach. Each Party therefore agrees that, in the event it breaches this Section 12 (Confidential Information), the other Party may be entitled to specific performance and injunctive or other equitable relief, in addition to any other relief to which it may be entitled at law or in equity. Any such relief will be in addition to and not in lieu of any relief in the form of monetary damages.
  13. INDEMNIFICATION
    1. Indemnification by PagerDuty. PagerDuty will defend and indemnify Partner and its and their respective officers, directors, agents and employees against any claims, actions or other proceedings brought against Partner by Customer alleging (i) the unmodified PagerDuty Services, its permitted distribution or use, infringes any third party United States copyright, patent, trade secret, or any other contractual or proprietary right, and (ii) any breach by PagerDuty of the PagerDuty Terms of Service; provided however, PagerDuty will have no obligation to defend and indemnify Partner under subsection (i) where a Customer (a) uses Services in any manner not otherwise authorized under PagerDuty Terms of Service or for a purpose or in a manner for which the technology, products or Services were not designed; (b) any combination of the Services with technology, products or services not provided by PagerDuty; (c) any modification to PagerDuty's Services made without PagerDuty'sexpress written consent, and (d) modifications made by PagerDuty at Customer's request.
    2. Indemnification by Partner. Partner will defend, indemnify and hold harmless PagerDuty, its Affiliates, and its and their respective officers, directors, agents and employees against any claims, actions or other proceedings brought against PagerDuty by a third party for any loss, damage, liability, or expense (including but not limited to attorneys' fees) arising out of (i) any acts or omissions of Partner arising from any breach by Partner of any representation, warranty or covenant made by Partner under this Agreement, and (ii) any breach of an agreement between Customer and Partner.
    3. Indemnification Procedure. As condition of an indemnifying Party's ("Indemnifying Party") obligations under this Section 13, (the Indemnification Procedure) the indemnified Party ("Indemnified Party") must: (a) provide the Indemnifying Party with prompt written notice of any claims, actions or other proceedings ("Claims") for which indemnification is sought (provided that any delay in notification will not relieve the Indemnifying Party of its obligations under the Agreement except and to the extent that the delay actually impairs its ability to defend); (b) reasonably co-operate with the Indemnifying Party, at the Indemnifying Party's expense, in connection with the defense and settlement of such Claims; and (c) allow the Indemnifying Party to control the defense and settlement of the Claim, provided, that the Indemnifying Party must not enter into any compromise or settlement that will have the effect of creating any obligation or liability on the Indemnified Party without the Indemnified Party's prior writtenconsent, whichwill not be unreasonably withheldor delayed. Indemnifying Party's duty to defend applies immediately, regardless of whether Indemnified Party has paid any sums or incurred any detriment arising out of or relating, directly or indirectly, to any third-party claim. If any Claim arising under this Section 13 (Indemnfication Procedure) is settled by the Indemnifying Party or with its approval, then the Indemnifying Party will pay any amounts to any third party agreed to by the Indemnifying Party in settlement of any such Claims. The Indemnified Party, at its sole expense, may participate in the defense or settlement of the Claim with counsel of its own choosing; provided, however, the defense and settlement will be solely controlled at all times by the Indemnifying Party as set forth in this Section 13.3 (c) above.

    14. SOLE REMEDY. THIS SECTION 13 (INDEMNIFICATION), SETS FORTH THE ENTIRE LIABILITY AND OBLIGATION OF INDEMNIFYING PARTY AND THE SOLE AND EXCLUSIVE REMEDY FOR THE INDEMNIFIED PARTY FOR ANY DAMAGES COVERED UNDER THIS SECTION 13.

  14. LIMITATION OF LIABILITY.
    1. EXCEPT AS PROHIBITED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, WHETHER IN AN ACTION IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, EXCLUDING ANY CLAIMS ARISING AS A RESULT OF A BREACH BY EITHER PARTY OF SECTION 12 (CONFIDENTIAL INFORMATION) OR INDEMNIFICATION OBLIGATION UNDER SECTION 13 (INDEMNIFICATION). EXCEPT WHERE PROHIBITED BY LAW, IN NO EVENT SHALL PAGERDUTY BE LIABLE FOR ANY AMOUNTS HEREUNDER IN EXCESS OF THE TOTAL FEES PAID TO PAGERDUTY BY PARTNER FOR THE ORDER FORM GIVING RISE TO THE CLAIM.
    2. MATERIAL INDUCEMENT. THE PARTIES ACKNOWLEDGE THAT THE LIMITATION OF LIABILITY SET FORTH HEREIN HAS BEEN INCLUDED AS A MATERIAL INDUCEMENT FOR THE PARTIES TO ENTER INTO THIS AGREEMENT AND THAT THE PARTIES WOULD NOT HAVE ENTERED INTO THIS AGREEMENT OR ANY AGREEMENT BUT FOR THE LIMITATIONS OF LIABILITY AS SET FORTH HEREIN.
  15. COMPLIANCE WITH APPLICABLE LAWS. Each Party will comply with all Applicable Law that may apply to the relationship contemplated under this Agreement. Without limiting the foregoing, each Party will implement appropriate technical and organizational security measures against unauthorized or unlawful processing of Personal Data and against accidental loss, destruction or damage to such Personal Data.In addition, Partner will (i)have in place privacy policies as least as protective of Personal Data as set forth in PagerDuty's Privacy Policy at https://www.pagerduty.com/privacy-policy/ abide by such polices at all times, and (ii) comply with PagerDuty Code of Conduct at https://investor.pagerduty.com/governance/governance-documents. Partner will only disclose Personal Data to PagerDuty necessary for discharge of PagerDuty's activities under this Agreement and will promptly notify PagerDuty of any unauthorized access of Personal Data from all Partner servers, owned, leased or otherwise used by Partner for the storage of Personal Data.
  16. GENERAL
    1. Export Regulation. PagerDuty Services and Confidential Information may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Partnerwill not, directly or indirectly, export, re-export, or release PagerDuty Services and Confidential Information to, or make the PagerDuty Services and Confidential Information accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Partner must comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the API available outside the US.
    2. US Government Rights. PagerDuty Services are "commercial item" as that term is defined at 48 C.F.R. § 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Partner is an agency of the US Government or any contractor therefor, Partner receives only those rights with respect to the API as are granted to all other end users under license, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government licensees and their contractors.
    3. Governing Law and Jurisdiction. This agreement is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice of conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of California. Any legal suit, action, or proceeding arising out of or related to this agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of California in each case located in the City and County of San Francisco, and each Party irrevocably submits to the exclusive jurisdiction and venue of such courts in any such suit, action, or proceeding. To the extent permitted by law, choice of law rules, the United Nations Convention on Contracts for the International Sale of Goods, and the Uniform Computer Information Transactions Act as enacted will not apply. Notwithstanding the foregoing, either Party may at any time seek and obtain appropriate legal or equitable relief in any court of competent jurisdiction for claims regarding such Party's intellectual property rights.
    4. Attorney Fees.In the event that any legal suit, action, or proceeding is instituted by one Party against the other Party, the prevailing Party in the suit, action or proceeding will be entitled to receive, in addition to all other damages to which it may be entitled, the costs incurred by such Party in conducting the suit, action, or proceeding, including reasonable attorneys' fees and expenses and court cost.
    5. Further Assurances.Each Party will, and will cause their respective Affiliates to, execute and deliver such additional documents, instruments, conveyances, and assurances and take such further actions as may be required to carry out the provisions hereof and give effect to the transactions contemplated herein.
    6. Public Announcements. Unless otherwise required by applicable law or stock exchange requirements, Partner will not make any public announcements in respect of this Agreement or the transactions contemplated hereby or otherwise communicate with any news media without PagerDuty's prior written consent.
    7. Notices. Except as otherwise expressly set forth in this Agreement, any notice, request, consent, claim, demand, waiver, or other communication under this Agreement will have legal effect only if in writing and addressed to a Party at the address set forth on the first page of this PagerDuty One-Time Reseller Agreement with a copy to the email set forth at "Contact for Notice".Notices sent in accordance with this Section 16.7 (Notices) will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by facsimilewith confirmation of transmission, if sent during the addressee's normal business hours, and on the next Business Day, if sent after the addressee's normal business hours; and (d) on the fifth (5th) day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
    8. Interpretation. For purposes of this Agreement; (a) the words "include," "includes," and "including" are deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive; and (c) the words "herein," "hereof," "hereby," "hereto," and "hereunder" refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (x) to sections, schedules, and exhibits mean the sections of, and schedules and exhibits attached to, this Agreement; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement will be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. The schedules and exhibits referred to herein will be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein.
    9. Headings. The headings in this Agreement are for reference only and will not affect the interpretation of this Agreement.
    10. Severability. The invalidity, illegality, or unenforceability of any provision herein does not affect any other provision herein or the validity, legality, or enforceability of such provision in any other jurisdiction. Any failure to act by a Party with respect to a breach of this Agreement by the other Party or others does not constitute a waiver and will not limit our rights with respect to such breach or any subsequent breaches. This Agreement is personal to Partner and may not be assigned or transferred for any reason whatsoever without our prior written consent and any action or conduct in violation of the foregoing will be void and without effect. PagerDuty expressly reserve the right to assign this Agreement and to delegate any of its obligations hereunder.
    11. Expenses.All costs and expenses incurred in connection with this Agreement will be paid by the Party incurring such costs and expenses.
    12. Amendment and Modification. This Agreement may only be amended, modified, or supplemented as set forth herein or by mutual written agreement between the Parties.
    13. Waiver.No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. No waiver by any Party will operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
    14. Cumulative Remedies. The rights and remedies under this Agreement are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise, except to the extent expressly provided to the contrary herein.
    15. Equitable Remedies. The Parties agree that irreparable damage may occur if any provision of this Agreement were not performed in accordance with the terms hereof and that the Parties may be entitled to equitable relief, including injunctive relief or specific performance of the terms hereof, in addition to any other remedy to which they are entitled at law or in equity.
    16. Assignment. Partner may not assign any of its rights or delegate any of its obligations hereunder without PagerDuty prior written consent, which consent will not be unreasonably withheld, conditioned, or delayed. Any purported assignment or delegation in violation of this Section 16.16 Assignment will be null and void. No assignment or delegation will relieve Partner of any of Partner's obligations hereunder.
    17. Successors and Assigns. This Agreement will be binding upon and will inure to the benefit of the Parties hereto and their respective permitted successors and permitted assigns.
    18. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
    19. Force Majeure.No Party will be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by or results from acts beyond the affected Party's reasonable control, including, without limitation: (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) government order or law; (e) actions, embargoes, or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages or slowdowns, or other industrial disturbances; and (i) shortage of adequate power or transportation facilities. The Party suffering a Force Majeure Event will give noticeto the other Party within three days of the Force Majeure Event, stating the period of time the occurrence is expected to continue and will use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized.
    20. Relationship of the Parties.Notwithstanding the identifier of "Partner", nothing herein will be construed to create a joint venture or partnership between the Parties hereto or an employer/employee or agency relationship. Neither Party will have any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other Party or to bind the other Party to any contract, agreement, or undertaking with any third party.
    21. Business Days.If any date on which a Party is required to make a payment or a delivery pursuant to the terms hereof is not a Business Day, then such Party will make such payment or delivery on the next succeeding Business Day.
    22. Entire Agreement This Agreement constitutes the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
    23. Counterparts.This Agreement may be executed in any number of identical counterparts, notwithstanding that the Parties have not signed the same counterpart, with the same effect as if the Parties had signed the same document.All counterparts will be construed as and constitute the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission will be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.