Service Terms of Use (April 24, 2017) Archive

Service Terms of Use THESE SERVICE TERMS OF USE (“TERMS OF USE”) ARE A LEGAL AGREEMENT BETWEEN YOU OR THE COMPANY YOU REPRESENT (“YOU” OR “YOUR”) AND PAGERDUTY, INC. (“US,” “WE” OR “OUR”) GOVERNING YOUR ACCESS USE OF OUR SERVICES. BY ACCEPTING THESE TERMS OF USE, EITHER THROUGH CLICKING TO SIGNIFY ACCEPTANCE, SETTING UP A USER ACCOUNT OR USING THE SERVICES, YOU AGREE TO BE BOUND BY ALL OF THEIR PROVISIONS. YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THESE TERMS OF USE ON YOUR (AND YOUR COMPANY’S) BEHALF. IF YOU DO NOT AGREE WITH THE TERMS OF USE, YOU SHOULD NOT INDICATE ACCEPTANCE AND MAY NOT USE THE SERVICES. PLEASE READ THESE TERMS OF USE CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THESE TERMS OF USE CONTAIN A MANDATORY INDIVIDUAL ARBITRATION PROVISION THAT REQUIRES THE USE OF ARBITRATION RESOLVE DISPUTES.

1. Use of the Service. Our “Service” is a cloud based application and platform for IT on-call management, alerting, Incident tracking, and Incident and alert analytics. An “Incident” is an event that triggers the Service to alert your personnel using certain Contact Information. You must configure the Service for us, provide and maintain accurate Contact Information, follow proper procedure in communicating alerts and triggering events for Incidents to us and submit alert requests through proper channels, including, without limitation, alternate channels if standard channels are unavailable or the Service may not function properly. “Contact Information” means the names, email addresses, telephone numbers, and other required information of your personnel that you want the Service to alert in the event of an Incident and who have consented to receive such messages via the Service (each a “Contact Person”), along with other relevant information provided by you or your Users such as alert priorities. You will need to designate individuals authorized to maintain the Contact Information, configure the Service for handling Incidents, and receive reports from the Service (each a “User”). Instructions on how to configure the Service, provide Contact Information and otherwise get the full benefit of the Service will be found in the readme and help files, knowledge base, and other documentation made available at https://www.pagerduty.com/support/ (“Documentation”).  We may suspend or terminate your use of the Service at any time if you breach any terms of these Terms of Use, including without limitation failing to pay Fees.
2. Trial Period. You may use the Service for a fifteen (15) days trial period, starting on the date that you registered with our Service and accepted these Terms of Use without charge or further commitment for evaluation purposes. You need to be aware that the Service will automatically cease functioning at the end of the trial period unless i) otherwise extended by PagerDuty in its sole discretion, ii) you supply your credit card or other payment information and purchase a subscription to the Service. At the end of the trial period, unless you purchase a subscription to the Service, all Contact Information and other data you provide to the Service (“Customer Information”) will no longer be available. During the trial period you are free to add and remove Users; if you purchase a subscription to the Service you will be charged in accordance with our standard Fees, including, without limitation, on a on a per User basis. DURING THE TRIAL PERIOD WE WILL HAVE NO OBLIGATION WHATSOEVER TO CONTINUE PROVIDING THE SERVICE TO YOU, AND YOU WILL HAVE NO CLAIM OR REMEDY FOR THE FAILURE OF THE SERVICE. THESE LIMITATIONS ARE IN ADDITION TO THE WARRANTY DISCLAIMERS AND LIABILITY LIMITS IN THESE TERMS OF USE.
3. Subscription Terms. Subject to payment of all Fees and the terms and conditions of these Terms of Use, we hereby grant you a limited, non-exclusive, non-sublicensable and nontransferable right during the Term (as defined below) of these Terms of Use to use the Service only in accordance with the Documentation, solely for your internal purposes.  You must purchase a subscription for each User that will access the Service. If more than the permitted number of Users access the Service you will be charged the applicable Fees for the excess Users. You may add Users from the Service dashboard as needed, subject to paying applicable additional Fees. User subscriptions cannot be shared or used by more than one (1) User but may be reassigned to a new User replacing a person who no longer requires access to the Service. You are solely responsible for selecting secure User passwords, changing passwords frequently, maintaining the confidentiality of User logons and passwords, and restricting access to the Service. We assume no responsibility for damage or loss arising from unauthorized access to the Service and your account due to your failure to protect your account through proper maintenance of User logons and passwords. The Service is subject to certain limitations on the number of email alerts, phone call alerts, SMS alerts and other types of alerts, each as specified on our website (“Alert Limits”). You will be charged the applicable Fees for any alerts in excess of the Alert Limits (“Overages”). The Service may be subject to other limitations as set forth in the Documentation, including, but not limited to, limits on disk storage space, the rate of incoming email requests, the number of inbound calls permitted to the API within a specified period of time, the number of outbound calls the Service will make to a client API within a specified period of time, and the number of alerts the Service will send to a Contact Person within a specified period of time. You acknowledge that exceeding these other limitations may cause the Service to malfunction, may accrue additional Fees, or may result in suspension of the Service until compliance has occurred.
4. Restrictions on Use. You may not use the Service or Documentation except as permitted in these Terms of Use. Without limiting the foregoing, you may not, and may not cause or permit any third party to, (i) alter, modify or create any derivative works of the Service, the underlying source code, or the Documentation in any way, including without limitation customization, translation or localization; (ii) rent, lease, license, sublicense, encumber, sell, offer for sale, or otherwise transfer rights to the Service or Documentation, including for timesharing or as a service bureau; (iii) port, reverse compile, reverse assemble, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Service; (iv) copy, distribute, link, frame, mirror or otherwise make available any portion of the Service to any third party; (v) remove or alter any logos, trademarks, links, copyright or other notices, legends or markings from the Service or Documentation; (vi) attempt to bypass or tamper with the security, operation of the Service; (vii) attempt to access the accounts or data of any other customer or user; or (viii) use the Service for benchmarking purposes or otherwise to analyze its workings and features for competitive purposes or in a manner that imposes unusual demands on the service outside of normal functions and operations.
5. Proprietary Rights.
   1. Contact Information.  You will retain all right, title and interest in and to the Contact Information and all intellectual property rights therein.  Nothing in these Terms of Use will confer to us any right of ownership or interest in the Contact Information, other than the limited license set forth herein.
   2. Company Intellectual Property.  We shall retain all right, title and interest in and to the Company Intellectual Property, and any changes, derivatives, corrections, developments, bug fixes, enhancements, updates and other modifications thereto, and as between the parties all such rights shall vest in and be assigned to us.  Nothing in these Terms of Use will confer on you any right of ownership or interest in the any Company Intellectual Property, other than the limited license set forth herein.  “Company Intellectual Property” means our proprietary technology, including the Service and Documentation, websites, software tools, hardware designs, algorithms, software, user interface designs, architecture, documentation, network designs, know-how, and trade secrets, and all intellectual property rights therein and thereto throughout the world (whether owned by us or licensed to us by a third party).
6. Warranty Related to SMS Use in the United States.
   1. By signing up to the Service, you agree to receive SMS and other types of messages from us (“Messaging”), and you represent and warrant that you shall (i) receive and will maintain consents from each Contact Person to receive (“Messaging), (ii) maintain procedures for each Contact Person to opt out of participating in Messaging, and once opted-out, you will not re-subscribe Contact Person to Messaging until you have obtained renewed consent from Contact Person to receive Messaging through the Service, and (iii) comply with all applicable law relating to Messaging in your use of the Service, including without limitation, the Telephone Consumer Protection Act and CAN-SPAM.  You shall be responsible for compliance with Messaging laws.
7. Support, Security and Privacy.
   1. We shall provide basic support for the Service as selected by you on our website when you enroll in the Service.
   2. We shall maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Contact Information. Without your prior written consent, we shall not (i) modify Contact Information, (ii) disclose Contact Information to a third party (except as needed to perform the Service or if required to do so by law or governmental process), or (iii) access Contact Information except to provide the Service and prevent or address Service or technical problems. In the event of an intrusion or other breach of the Service’s security, Company shall use reasonable efforts to (a) notify you of the breach once a full investigation into the nature of the breach has been conducted and concluded and sufficient steps to remediate or correct the breach have occurred to ensure that all customer data is secure and would not be further jeopardized by such notification, and (b) resolve the breach and recover any data disclosed as a result thereof.
   3. You acknowledge and permit us to compile and use statistical or aggregate information about your use or your Users’ use of the Service, including, without limitation, the types and number of Incidents, number of alerts, and other metadata, for promotional purposes and to improve the Service; provided, however, that such use will not in any manner include Contact Information or otherwise identify you. Contact Information shall be treated in accordance with our Privacy Policy set forth on the website.
8. Fees and Payment Terms. You shall pay all Fees associated with your use of the Service as set forth on our website (“Fees”). Self service plans must be paid for by credit card. You hereby represent that you have the right to provide us with your credit card information and authorize us to charge the credit card for all Fees. We will charge your card on a monthly basis, but may change the date on which the charge is posted at any time. The amount charged will depend on the type of plan you select. For self service month-to-month plans: (i) you must indicate an initial number of Users but may change that number or cancel the plan at any time; (ii) for the first month, we will charge your credit card with an estimate of your fees for that month in advance, with any excess credited against subsequent month’s fees (and forfeited if you cancel before all credit is applied); (iii) for subsequent months, we will charge your credit card monthly, in arrears, based on the largest number of Users active on any day of the month; (iv) we will pro rate the Fees for the final month based on the number of days; and (v) we reserve the right to change the Fees at any time. For self service annual plans: (i) you must indicate an initial number of Users and may not reduce that number during the term of the plan; (ii) for the first month, we will charge your credit card a full year’s subscription fees based on the initial number of Users, which amount is not cancellable or refundable; (iii) any Users added during the term of your plan will have their subscription fees calculated at the rate then in effect and prorated for the remainder of the plan term so that all User subscriptions shall terminate on the same date and we will charge the prorated amount to your credit card in the month in which the Users are added. If you incur Overages, we will charge them to your credit card in the month in which they occur. You agree to pay all charges incurred by Users of your credit card, debit card, or other payment method used in connection with a purchase or transaction or other monetary transaction interaction with the Service at the prices in effect when such charges are incurred.  You will pay any applicable taxes, if any, relating to any such purchases, transactions or other monetary transaction interactions.  All Fees are payable in United States dollars and are non-cancelable and non-refundable except as otherwise set forth herein. You shall be responsible for and pay all sales, use, value added or other taxes, except for taxes based on our income. Unpaid amounts payments may be assessed a late fee of the lesser of 1.5% per month or the maximum rate permitted by applicable law. We may suspend or terminate access to the Service if you fail to make any payments when due.  California Residents. The provider of Services is: PagerDuty, Inc., 501 Second Street #100, San Francisco, CA 94107. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.
9. Confidentiality. The Service and Documentation and all other information disclosed to you will be our “Confidential Information.” Your Contact Information will be your Confidential Information. Each party will keep the other’s Confidential Information confidential, will only use it in furtherance of these Terms of Use, and will not disclose it to any third party unless required to do so by law (in which case notice shall be given of the requirement to allow the other party to object or take other action), or if needed to fulfill its obligations hereunder (in which case any such third party must be bound by similar terms of confidentiality).
10. Injunctive Relief. You acknowledge and agree that your breach or threatened breach of these Terms of Use shall cause us irreparable damage for which recovery of money damages would be inadequate and that we therefore may obtain timely injunctive relief to protect its rights under these Terms of Use in addition to any and all other remedies available at law or in equity.
11. Indemnification
    1. By Us. We shall defend, indemnify and hold you harmless from and against all claims, losses and damages (including reasonable attorneys’ fees) made by a third party that the Service infringes that third party’s United States intellectual property rights, except to the extent such a claim is based on your misuse of the Service. If we believe that any portion of the Service may be subject to such a claim, then we may, at our sole option and expense: (x) procure for you the right to continue using the Service; (y) modify or replace the infringing portions of the Service to allow for continued use, or if these alternatives are not commercially reasonable refund any unused, prepaid Fees and terminate these Terms of Use. THIS SECTION 11 STATES OUR ENTIRE LIABILITY FOR INFRINGEMENT RELATING TO THE SUBJECT MATTER OF THESE TERMS OF USE AND SHALL NOT APPLY DURING ANY TRIAL PERIOD. As a condition to being indemnified you shall promptly notify us of any claim, and allow us sole control of the defense and settlement of the claim.
    2. By You. You agree to defend, indemnify and hold PagerDuty, Inc. harmless from and against all claims, losses and damages, suits, government investigations, fines, actions, damages, settlements, losses, liabilities, costs and expenses (including reasonable attorneys’ fees) for any breach of your representations, warranties and covenants set forth in Section 6 above.
12. Warranties; Disclaimers.
    1. We warrant that the Service will perform in accordance with the Service Level Agreement (SLA) set forth on our website at https://www.pagerduty.com/standard-service-level-agreement/; provided, however, that the sole remedy for breach of this warranty or failure of the Service to perform shall be as set forth in that SLA.
    2. You represent and warrant that you will not use the Service in any country embargoed by the United States and neither you, nor your Users are a foreign person or entity blocked or denied by the United States government.  You further represent and warrant that you are entirely responsible for your compliance with all applicable United States laws and regulations and with all applicable local laws and regulations, including but not limited to export and import regulations.
    3. EXCEPT FOR THE FOREGOING, WE PROVIDE THE SERVICE AND DOCUMENTATION “AS IS” WITHOUT ANY WARRANTY WHATSOEVER AND HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THAT THE SERVICE WILL BE FREE FROM ERRORS OR VIRUSES, IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, RELIABILITY, ACCURACY, SECURITY OF DATA, OR ACHIEVEMENT OF RESULTS.
    4. WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT, SERVICE OR CONTENT ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE, SERVICE OR CONTENT, AND WE WILL NOT BE A PARTY TO, LIABLE FOR OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
13. Limitation of Liability.  NEITHER PARTY SHALL BE LIABLE HEREUNDER TO THE OTHER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR STRICT LIABILITY, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS, WHETHER OR NOT FORESEEABLE AND EVEN IF SUCH PARTY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT WHERE OTHERWISE EXPLICITLY INDICATED, A PARTY’S LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF USE SHALL NOT EXCEED THE AMOUNTS PAID OR PAYABLE HEREUNDER IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY.  WITHOUT LIMITING THE FOREGOING, WE SHALL HAVE NO LIABILITY FOR ANY FAILURE OF THE SERVICE ARISING FROM OR RELATED TO (I) ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS (II) YOUR OR YOUR USERS’ FAILURE TO CONFIGURE THE SERVICE IN CONFORMANCE WITH THE DOCUMENTATION, (III) YOUR OR YOUR USERS’ FAILURE TO PROVIDE ACCURATE CONTACT INFORMATION TO THE SERVICE, OR (IV) ANY MESSAGING LAWS.  THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
14. Modifications to the Terms of Use. We reserve the right, at our sole discretion, to modify or replace any part of these Terms of Use by (i) posting revised Terms of Use on and/or through the Service or (ii) providing notice to you of the change. Modifications will take effect at the start of the month following notice for self-service month-to-month plans, and at the end of the prepaid Term for all other plans.
15. Arbitration.  READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US. For any dispute with us, you agree to first contact us at legal@pagerduty.com and attempt to resolve the dispute with us informally. In the unlikely event that we have not been able to resolve a dispute it has with you after sixty (60) days, any controversy or claim arising out of or relating to these Terms of Use, or the breach hereof, shall be settled by arbitration in the city of San Francisco, California, by binding arbitration by JAMS, Inc. (“JAMS”), under the Optional Expedited Arbitration Procedures then in effect for JAMS. JAMS may be contacted at www.jamsadr.com.  Any award shall be final, binding and conclusive.  A judgment upon the award rendered may be entered in any court having jurisdiction thereof.  Nothing in this Section shall be deemed as preventing us from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, intellectual property rights or other proprietary rights.
16. Term and Termination. These Terms of Use commence when you accept them. At the end of the term you contract for use of the Service, it shall automatically renew for additional terms of the same length at the prices communicated to you at least sixty (60) days prior to the end of that term (or the same prices as the prior term if no new prices are provided) until terminated by either you or us with at least thirty (30) days’ notice prior to the end of each such term. Either party may terminate these Terms of Use upon thirty (30) days’ prior written notice to the other party for a material breach that remains uncured at the expiration of such period. Immediately upon termination of these Terms of Use for any reason, you will (i) cease use of the Service, (ii) pay in full all Fees due upon termination, and (iii) return or destroy all copies of our Confidential Information. Upon expiration or termination of these Terms of Use for any reason your account shall be deactivated and all Contact Information deleted. All provisions of these Terms of Use which by their nature should survive cancellation or termination shall survive cancellation or termination.
17. Publicity. You agree that we may identify you as a customer in our promotional and marketing activities and on our website.
18. Miscellaneous. You will only use the Service in accordance with applicable law, including, without limitation all export control laws. These Terms of Use shall be governed by and interpreted in accordance with the laws of the state of California without regard to its conflict of laws provisions. You may not assign, sublicense, delegate or otherwise transfer any of your rights or obligations under these Terms of Use without our prior written consent. We may assign these Terms of Use at our sole discretion. These Terms of Use shall be binding upon and shall inure to the benefit of the parties, their successors and permitted assigns. If any provision of these Terms of Use is held to be invalid or unenforceable, such provision shall be construed to reflect the parties’ original intent, and the remainder of these Terms of Use shall remain in full force and effect. These Terms of Use constitute the entire understanding and agreement of the parties with respect to its subject matter and supersedes all prior and contemporaneous agreements or understandings. The failure of either party to enforce any of the provisions of these Terms of Use shall not be construed to be a waiver of the right of such party thereafter to enforce such provisions. The parties to these Terms of Use are independent contractors and no agency, partnership, joint venture, employment or similar relationship exists between them. Neither party has the authority to bind the other or incur any obligation on its behalf. Notices required hereunder shall be effective if delivered by email, facsimile (effective upon transmission, as evidenced by transmission reports), courier or delivery service (effective upon receipt), or first class United States mail, return receipt requested (effective upon receipt).